Federal Register: April 14, 1999 (Volume 64, Number 71)
Pages 18497-18528
_______________________________________________________________________
DEPARTMENT OF LABOR
Mine Safety and Health Administration
[[Page 18497]]
_______________________________________________________________________
Part III
30 CFR Parts 46 and 48
Training and Retraining of Miners Engaged in Shell Dredging or Employed
at Sand, Gravel, Surface Stone, Surface Clay, Colloidal Phosphate, or
Surface Limestone Mines; Proposed Rules
[[Page 18498]]
DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 46 and 48
RIN 1219-AB17
Training and Retraining of Miners Engaged in Shell Dredging or
Employed at Sand, Gravel, Surface Stone, Surface Clay, Colloidal
Phosphate, or Surface Limestone Mines
AGENCY:
Mine Safety and Health Administration (MSHA), Labor.
ACTION:
Proposed rule.
-----------------------------------------------------------------------
SUMMARY:
This proposed rule would amend MSHA's existing health and
safety training regulations by establishing new training requirements
for shell dredging, sand, gravel, surface stone, surface clay,
colloidal phosphate, and surface limestone mines. Congress has
prohibited MSHA from expending funds to enforce training requirements
at these mines since fiscal year 1980. This proposed rule would
implement the training requirements of section 115 of the Federal Mine
Safety and Health Act of 1977 (Mine Act) and provide for effective
miner training at the affected mines once Congress has removed the
appropriation's prohibition from MSHA's budget. At the same time, the
proposed rule would allow mine operators the flexibility to tailor
their training programs to the specific needs of their miners and
operations.
DATES:
Submit comments on or before June 14, 1999.
ADDRESSES:
Send comments on the proposed rule--
(1) By mail to MSHA, Office of Standards, Regulations, and
Variances, 4015 Wilson Boulevard, Room 631, Arlington, VA 22203;
(2) By facsimile to MSHA, Office of Standards, Regulations, and
Variances, 703-235-5551; or
(3) By electronic mail to zzMSHA-Comments@dol.gov. If possible, please
supplement written comments with computer files on disk; contact the
Agency with any format questions.
Submit written comments on the information collection requirements
directly to the Office of Information and Regulatory Affairs, OMB, New
Executive Office Building, 725 17th Street, NW, Washington, DC 20503,
Attn: Desk Officer for MSHA; and to Carol J. Jones, Acting Director,
Office of Standards, Regulations, and Variances, MSHA 4015 Wilson
Boulevard, Room 631, Arlington, VA 22203; by facsimile to MSHA, at 703-
235-5551; or by electronic mail to
zzMSHA-Comments@dol.gov.
FOR FURTHER INFORMATION CONTACT:
Carol J. Jones, Acting Director,
Office of Standards, Regulations, and Variances, MSHA; 703-235-1910.
SUPPLEMENTARY INFORMATION:
I. Plain Language
We (MSHA) wrote this proposed rule in the more
personal style advocated by the President's executive order on "plain
language.'' "Plain
language'' encourages the use of--
- personal pronouns (we and you);
- sentences in the active voice;
- a greater use of headings, lists, and questions, as
well as charts, figures, and tables.
In this proposed rule, "you'' refers to production-operators and
independent contractors because they have the primary responsibility
for compliance with MSHA regulations. In addition, we recognize and
appreciate the value of comments, ideas, and suggestions from labor
organizations, industry associations, and other parties who have an
interest in health and safety training for miners. We would appreciate
comments and suggestions from all parties on this proposed rule and on
our use of "plain language.'' How could we improve the clarity of this
style?
II. Paperwork Reduction
Act
This proposed rule contains collection of information requirements
that are subject to review by the Office of Management and Budget (OMB)
under the Paperwork Reduction Act of 1995 (PRA 95). The title,
description, and respondent description of the information collection
are shown below with an estimate of the annual reporting burden.
Included in the estimate is the time for reviewing instructions,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. We invite comments on--
(1) Whether the proposed collection of information is necessary
for proper performance of our functions, including whether the
information will have practical utility;
(2) The accuracy of our estimate of the burden of the proposed
collection of information, including the validity of the methodology
and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of
information to be collected; and
(4) Ways to minimize the burden of the collection of information
on respondents, including through the use of automated collection
techniques, when appropriate, and other forms of information
technology.
These estimates are an approximation of the average time expected
to be necessary for a collection of information. They are based on such
information as is available to us.
Submission
MSHA has submitted a copy of this proposed rule to OMB for its
review and approval of these information collections. Interested
persons are requested to send comments regarding this information
collection, including suggestions for reducing this burden, directly to
the Office of Information and Regulatory Affairs, OMB, New Executive
Office Building, 725 17th Street, NW, Washington, DC 20503, Attn: Desk
Officer for MSHA; and to Carol J. Jones, Office of Standards,
Regulations, and Variances, MSHA, 4015 Wilson Boulevard, Room 631,
Arlington, VA 22203. Submit written comments on the information
collection no later than June 14, 1999.
Description of Respondents
Those required to provide the information are mine operators and
individuals who are paid to perform tasks for the mine operator (e.g.,
instructors).
Description of Information Collection Burden
The proposal contains information collection requirements in
Secs. 46.3, 46.5, 46.6, 46.7, 46.8, 46.9, and 46.11. The proposed rule
imposes first year total burden hours and costs of 239,188 hours and
$8,291,569. The first year burden hours and costs are composed by
summing the figures in Tables VII-1, VII-2, and VII-3. After the first
year, the annual burden hours and costs would be 226,685 hours and
$7,865,469, which is shown in Table VII-2
Table VII-1 presents one-time burden hours and costs by provision
and mine size.
[[Page 18499]]
Table VII-1.--Mine Operators' One-Time Burden Hours and Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mines (1-5) Mines (6-19) Mines (<gr-thn-eq>20) Totals
Prov. -------------------------------------------------------------------------------------------------------
Hrs. Costs Hrs. Costs Hrs. Costs Hrs. Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
46.3............................................ 7,509 $256,290 3,277 $111,830 1,207 $42,250 11,993 $410,370
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table VII-2 presents annual burden hours and cost by provision and
mine size.
Table VII-2.--Mines Operators' Annual Burden Hours and Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mines (1-5) Mines (6-19) Mines (<gr-thn-eq>20) Totals
Prov. ------------------------------------------------------------------------------------------------------------
Hrs. Costs Hrs. Costs Hrs. Costs Hrs. Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
46.5....................................... 41,007 $1,676,058 21,458 $1,016,502 4,860 $297,170 67,325 $2,989,730
46.6....................................... 7,898 284,341 4,240 152,627 978 35,192 13,116 472,159
46.7....................................... 5,599 201,579 7,980 287,297 7,111 256,008 20,691 744,884
46.8....................................... 34,551 1,243,839 15,433 555,582 5,461 196,582 55,445 1,996,003
46.9....................................... 2,765 73,267 5,876 155,725 5,704 151,164 14,346 380,156
46.11...................................... 25,208 579,773 22,005 506,115 8,550 196,650 55,763 1,282,538
------------------------------------------------------------------------------------------------------------
Total................................ 117,028 4,058,857 76,992 2,673,847 32,664 1,132,765 226,685 7,865,469
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table VII-3 presents miners and miners' representatives one-time
burden hours and costs.
Table VII-3.--Miners and Miners' Representatives--One-Time Burden Hours and Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mines (-5) Mines (6-19) Mines (<gr-thn-eq>20) Totals
Prov. -------------------------------------------------------------------------------------------------------
Hrs. Costs hrs. Costs Hrs. Costs Hrs. Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
46.3............................................ 336 $7,728 146 $3,358 28 $644 510 $11,730
--------------------------------------------------------------------------------------------------------------------------------------------------------
Paragraph (a) of Sec. 46.3 requires you to develop and implement a
written training plan that contains effective programs for training new
miners and experienced miners, training miners for new tasks, annual
refresher training, and hazard training. The mines affected by this
provision are--
(1) 3,361 mines that employ 5 or fewer workers;
(2) 1,467 mines that employ between 6 and 19 workers; and
(3) 285 mines that employ 20 or more workers.
MSHA estimates that a mine supervisor, earning $36 per hour, would
take 2 hours to write a plan in mines that employ fewer than 20
persons, and 4 hours in mines that employ 20 or more persons. The one-
time costs are annualized using an annualization factor of 0.07.
Paragraph (b) requires the following information, at a minimum, to be included in a training plan:
(1) The company name, mine name, and MSHA mine identification
number;
(2) The name and position of the person designated by you who is
responsible for the health and safety training at the mine. This
person may be the operator;
(3) A general description of the teaching methods and the course
materials that are to be used in providing the training, including
the subject areas to be covered and the approximate time to be spent
on each subject area;
(4) A list of the persons who will provide the training, and the
subject areas in which each person is competent to instruct; and
(5) The evaluation procedures used to determine the
effectiveness of training.
Paragraph (c) requires a plan that does not include the minimum
information specified in paragraph (b) to be approved by us. For each
size category, we estimate that 20 percent of you will choose to write
a plan and send it to us for approval. Thus, the mines affected by this
provision are--
(1) 672 mines that employ 5 or fewer workers;
(2) 293 mines that employ between 6 and 19 workers; and
(3) 57 mines that employ 20 or more workers.
MSHA estimates that it would take a clerical worker, earning $17
per hour, about 0.1 hours per mine to photocopy and mail the training
plan. The one-time costs are annualized using an annualization factor
of 0.07.
Paragraph (d) requires you to provide miners' representatives with
a copy of the training plan. At mines where no miners' representative
has been designated, you must post a copy of the plan at the mine or
provide a copy to each miner. The mines affected by this provision
are--
(1) 3,361 mines that employ 5 or fewer workers;
(2) 1,467 mines that employ between 6 and 19 workers; and
(3) 285 mines that employ 20 or more workers.
MSHA estimates that a clerical worker, earning $17 per hour, would
take 0.1 hours to photocopy the plan and either deliver or post the
plan. The one-time costs are annualized using an annualization factor
of 0.07.
Paragraph (e) provides that within 2 weeks following receipt or
posting of the training plan, miners or their representatives may
submit written comments on the plan to you, or to the Regional Manager,
as appropriate. The burden hours and costs of this provision are not
borne by you, but by miners and their representatives.
MSHA estimates that a miner or miners' representative would submit
comments for 5 percent of the affected mines in each size category. The
mines affected by this provision are--
(1) 168 mines that employ 5 or fewer workers;
(2) 73 mines that employ between 6 and 19 workers; and
(3) 14 mines that employ 20 or more workers.
MSHA estimates that a miner or miners' representatives, earning $23
per hour, would take 2 hours per affected mine to prepare written
comments. The one-time costs are annualized using an annualization
factor of 0.07.
[[Page 18500]]
Paragraph (g) allows you, miners, and miners' representatives to
appeal a decision of the Regional Manager in writing to the Director
for Education Policy and Development. The Director would issue a
decision on the appeal within 30 days after receipt of the appeal. The
mines affected by this provision are--
(1) 13 mines that employ 5 or fewer workers;
(2) 6 mines that employ between 6 and 19 workers; and
(3) 1 mine that employees 20 or more workers.
MSHA estimates that for 90% of you who would appeal a decision, a
mine supervisor would write the appeal. MSHA estimates that a mine
supervisor, earning $36 per hour, would take 4 hours to write the
appeal. The one-time costs are annualized using an annualization factor
of 0.07.
MSHA further estimates that for the remaining 10% of you who would
appeal a decision, an attorney (a third party) would write the appeal.
There are no mine operator burden hours in this case, because you would
pay the third party for its services. The attorney fee to handle an
appeal process is estimated to be $2,000 per appeal, and this cost is
annualized using an annualization factor of 0.07.
Paragraph (h) requires you to make available at the mine site a
copy of the current training plan for inspection by MSHA and for
examination by miners and their representatives. If the training plan
is not maintained at the mine site, you must have the capability to
provide the plan upon request by MSHA, miners, or their
representatives. The mines affected by this provision are--
(1) 3,361 mines that employ 5 or fewer workers;
(2) 1,467 mines that employ between 6 and 19 workers; and
(3) 285 mines that employ 20 or more workers.
MSHA estimates that a clerical worker, earning $17 per hour, would
take 0.1 hours to photocopy and file the training plan. The one-time
costs are annualized using an annualization factor of 0.07.
Paragraph (a) of Sec. 46.5 requires you to provide each new miner
with no less than 24 hours of training. Miners who have not received
the full 24 hours of new miner training must work under the close
supervision of an experienced miner. The mines affected by this
provision are--
(1) 3,361 mines that employ 5 or fewer workers;
(2) 1,467 mines that employ between 6 and 19 workers; and
(3) 285 mines that employ 20 or more workers.
MSHA estimates that for each mine, a mine supervisor, earning $36
per hour, would take 6 hours annually to prepare for the new miner
training. MSHA further estimates that the average number of training
sessions the mine supervisor would provide annually are--
(1) 0.46 sessions for mines that employ 5 or fewer workers;
(2) 0.64 sessions for mines that employ between 6 and 19
workers; and
(3) 0.82 sessions for mines that employ 20 or more workers.
On average, each training session is estimated to last 13.48 hours.
Additionally, we estimate that part of new miner training would be
provided off-site by a third party. You would pay the third party for
providing this part of the new miner training; thus you would incur
burden costs but no burden hours. The number of miners receiving off-
site training are--
(1) 1,537 miners in mines that employ 5 or fewer workers;
(2) 1,877 miners in mines that employ between 6 and 19 workers;
and
(3) 940 miners in mines that employ 20 or more workers.
The annual costs for off-site training are $130 per miner. This
consists of the following: a $35 training fee; $30 for transportation
to off-site training; $30 per diem for meals; and $35, on average, for
overnight lodging (We assume that half of the miners receiving off-site
training will require overnight lodging for one night at $70 per night,
or 0.5 x $70).
Paragraph (a) of Sec. 46.6 requires you to provide each newly-hired
experienced miner with certain training before the miner begins work.
The mines affected by this provision are--
(1) 3,361 mines that employ 5 or fewer workers;
(2) 1,467 mines that employ between 6 and 19 workers; and
(3) 285 mines that employ 20 or more workers.
MSHA estimates that it would take a mine supervisor, earning $36
per hour, 1 hour annually to prepare to give the experienced miner
training. MSHA further estimates that the average number of training
sessions the mine supervisor would provide annually are--
(1) 0.45 sessions for mines that employ 5 or fewer workers;
(2) 0.63 sessions for mines that employ between 6 and 19
workers; and
(3) 0.81 sessions for mines that employ 20 or more workers.
On average, each training session is estimated to last 3 hours.
Paragraph (a) of Sec. 46.7 requires that before a miner performs a
task for which he or she has no experience, you must train the miner in
the safety and health aspects and safe work procedures specific to that
task. If changes have occurred in a miner's regularly assigned task,
you must provide the miner with training that addresses the changes.
The mines affected by this provision are--
(1) 3,361 mines that employ 5 or fewer workers;
(2) 1,467 mines that employ between 6 and 19 workers; and
(3) 285 mines that employ 20 or more workers.
MSHA estimates that for each mine, a mine supervisor, earning $36
per hour, would take 0.25 hours annually to prepare for the task
training. MSHA further estimates that the average number of training
sessions the mine supervisor would provide annually are--
(1) 2.36 sessions for mines that employ 5 or fewer workers;
(2) 8.65 sessions for mines that employ between 6 and 19
workers; and
(3) 41.17 sessions for mines that employ 20 or more workers.
On average, each training session is estimated to last 0.6 hours.
Paragraph (a) of Sec. 46.8 requires that at least every 12 months,
you must provide each miner with no less than 8 hours of refresher
training. The mines affected by this provision in each size category
are--
(1) 3,361 mines that employ 5 or fewer workers;
(2) 1,467 mines that employ between 6 and 19 workers; and
(3) 285 mines that employ 20 or more workers.
MSHA estimates that for each mine, a mine supervisor, earning $36
per hour, would take 3 hours to prepare for the task training. MSHA
further estimates that the average number of training sessions the mine
supervisor would provide annually are--
(1) 0.91 sessions for mines that employ 5 or fewer workers;
(2) 0.94 sessions for mines that employ between 6 and 19
workers; and
(3) 2.02 sessions for mines that employ 20 or more workers.
On average, each training session is estimated to last 8 hours.
Paragraph (a) of Sec. 46.9 requires you, upon completion of each
training program, to record and certify on MSHA Form 5000-23, or on a
form that contains the required information, that the miner has
completed the training. False certification that training was
[[Page 18501]]
completed is punishable under Sec. 110(a) and (f) of the Act. For all
records required to be kept in Secs. 46.5, 46.6, 46.7, and 46.8, MSHA
estimates that for each mine, a mine supervisor, earning $36 per hour,
would take 0.05 hours to record and certify each miner's training
record. In addition, it would take a clerical worker, earning $17 per
hour, 0.05 hours to prepare, copy, and distribute the certificate.
The annual number of training records required to be kept under
Sec. 46.5 (New miner training) are--
(1) 1,537 in mines that employ 5 or fewer workers;
(2) 1,877 in mines that employ between 6 and 19 workers; and
(3) 940 in mines that employ 20 or more workers.
The annual number of training records required to be kept under
Sec. 46.6 (Newly-hired experienced miner training) are--
(1) 1,516 in mines that employ 5 or fewer workers;
(2) 1,856 in mines that employ between 6 and 19 workers; and
(3) 930 in mines that employ 20 or more workers.
The annual number of training records required to be kept under
Sec. 46.7 (New task training) are--
(1) 18,446 in mines that employ 5 or fewer workers;
(2) 41,273 in mines that employ between 6 and 19 workers; and
(3) 41,380 in mines that employ 20 or more workers.
The annual number of training records required to be kept under
Sec. 46.8 (Annual refresher training) are--
(1) 6,149 in mines that employ 5 or fewer workers;
(2) 13,758 in mines that employ between 6 and 19 workers; and
(3) 13,793 in mines that employ 20 or more workers.
During the public meetings, numerous commenters stated that records
should not have to be retained at the mine site. MSHA agrees and the
proposed rule provides that records are not required to be maintained
at the mine site, and therefore can be electronically filed in a
central location, so long as the records are made available to the
authorized representative of the Secretary upon request within a
reasonable time, in most cases one day.
Although the proposed rule does not require backing up the data,
some means are necessary to ensure that electronically stored
information is not compromised or lost. MSHA encourages mine operators
who store records electronically to provide a mechanism that will allow
the continued storage and retrieval of records in the year 2000.
MSHA solicits comment on what actions would be required, if any, to
facilitate the maintenance of records in electronic form by those mine
operators who desire to do so, while ensuring access in accordance with
these requirements.
Paragraph (a) of Sec. 46.11 requires you to provide site-specific
hazard training to--
(1) Scientific workers;
(2) Delivery workers and customers;
(3) Occasional, short-term maintenance or service workers, or
manufacturers' representatives; and
(4) Outside vendors, visitors, office or staff personnel who do
not work at the mine site on a continuing basis.
The annual number of non-miners to be trained are--
(1) 50 non-miners in each of the 3,361 mines that employ 5 or
fewer workers;
(2) 100 non-miners in each of the 1,467 mines that employ
between 6 and 19 workers; and
(3) 200 non-miners in each of the 285 mines that employ 20 or
more workers.
No record is required for this type of training. The burden is for
the time the miner takes to provide the training. MSHA estimates that
for each mine, a miner, earning $23 per hour, would take 0.15 hours
annually, on average, to provide hazard training.
III. Executive Order 12866 and Regulatory
Flexibility Act
Executive Order (E.O.) 12866 requires that regulatory agencies
assess both the costs and benefits of intended regulations. Based upon
the economic analysis, we have determined that this proposed rule is
not an economically significant regulatory action pursuant to section
3(f)(1) of E.O. 12866. MSHA does consider the proposed rule to be
significant under section 3(f)(4) of the E.O. because of widespread
interest in the rule, and has submitted the proposal to OMB for review.
The Regulatory Flexibility Act (RFA) requires regulatory agencies
to consider a rule's impact on small entities. Under the RFA, MSHA must
use the Small Business Administration's (SBA) definition for a small
mine of 500 or fewer employees or, after consultation with the SBA
Office of Advocacy, establish an alternative definition for the mining
industry by publishing that definition in the Federal Register for
notice and comment. In this proposed rule, none of the affected mines
have 500 or more employees. Therefore for the purposes of the RFA, all
of the affected mines are considered small. MSHA has analyzed the
impact of the proposed rule on mines with 20 or more employees, mines
with 6-19 employees, and mines with 1-5 employees. MSHA has determined
that this proposed rule would not impose a substantial cost increase on
small mines.
MSHA has prepared a Preliminary Regulatory Economic Analysis (PREA)
and Regulatory Flexibility Certification Statement to fulfill the
requirements of E.O. 12866 and the Regulatory Flexibility Act. This
PREA is available from MSHA upon request and is posted on our Internet
Homepage at www.msha.gov.
Regulatory Flexibility Certification Statement
Based on MSHA's analysis of costs and benefits, the Agency
certifies that this proposed rule would not impose a significant
economic impact on a substantial number of small entities.
Factual Basis for
Certification
General approach: The Agency's analysis of impacts on "small
entities'' begins with a "screening'' analysis. The screening compares
the estimated compliance costs of the proposed rule for small mine
operators in the affected sector to the estimated revenues for that
sector. When estimated compliance costs are less than 1 percent of
estimated revenues (for the size categories considered) the Agency
believes it is generally appropriate to conclude that there is no
significant impact on a substantial number of small entities. When
estimated compliance costs approach or exceed 1 percent of revenue, it
tends to indicate that further analysis may be warranted. The Agency
welcomes comment on its approach in this regard.
Derivation of costs and revenues: In the case of this proposed
rule, because the compliance costs must be absorbed by the nonmetal
mines affected by this rule, the Agency decided to focus its attention
exclusively on the relationship between costs and revenues for these
mines, rather than looking at the entire metal and nonmetal mining
sector as a whole.
In deriving compliance costs there were areas where different
assumptions had to be made for small mines in different employment
sizes in order to account for the fact that the mining operations of
small mines are not the same as those of large mines. For example,
different assumptions for mine size categories were used to derive
compliance costs concerning: the number of persons trained per mine and
the number of training sessions a mine would have annually. In
determining revenues for the nonmetal mines
[[Page 18502]]
affected by this rulemaking, MSHA multiplied the production data (in
tons) by the price per ton of the commodity.
The Agency welcomes comment on sources that can help it more
accurately estimate revenues for the final rule or other rules confined
to this sector.
Results of screening analysis. As shown in Table V-1 with respect
to the nonmetal mines affected by this rule that have 1 through 5
workers, the estimated costs of the rule as a percentage of their
revenues are 0.30 percent. For nonmetal mines covered by this rule that
have 6 through 19 workers, the estimated costs of the rule as a
percentage of their revenues are 0.13 percent. For nonmetal mines
covered by this rule that have 20 or more workers, the estimated costs
of the rule as a percentage of their revenues are 0.03 percent.
Finally, for all nonmetal mines covered by this rule (which are mines
that have 500 or less workers), the estimated costs of the rule as a
percentage of their revenues are 0.09 percent.
In every case, the impact of the proposed compliance costs is
substantially less than 1 percent of revenues, well below the level
suggesting that the proposed rule might have a significant impact on a
substantial number of small entities. Accordingly, MSHA has certified
that there is no such impact for small entities that mine the
commodities that are covered by this rule.
As required under the law, MSHA is complying with its obligation to
consult with the Chief Counsel for Advocacy on this proposed rule, and
on the Agency's certification of no significant economic impact on the
mines affected by this rule. Consistent with Agency practice, notes of
any meetings with the Chief Counsel's office on this proposed rule, or
any written communications, will be placed in the rulemaking record.
The Agency will continue to consult with the Chief Counsel's office as
the rulemaking process proceeds.
Table V-1.--Exempt Nonmetal Mines Covered by the Proposed Rule a
[Dollars in thousands]
----------------------------------------------------------------------------------------------------------------
Costs as
Employment size Estimated Estimated percentage of
costs revenues b revenues
----------------------------------------------------------------------------------------------------------------
(1-5)........................................................... 5,857 1,949,366 0.30
(6-19).......................................................... 5,883 4,555,543 0.13
(20 or more).................................................... 3,154 9,756,081 0.03
All Minesc...................................................... 14,894 16,260,990 0.09
----------------------------------------------------------------------------------------------------------------
a All mines covered by the proposed rule are surface mines.
b Data for revenues derived from U.S. Department of the Interior/U.S. Geological Survey. Mining and Quarrying
Trends, 1997 Annual Review. 1997. Tables 2 and 3.
c Every mine affected
by rule has 500 or fewer employees.
Compliance Costs
MSHA estimates that the total net cost of the proposed new 30 CFR
part 46 training requirements would be approximately $16.2 million
annually, of which about $14.9 million would be borne by mine
operations in the following surface nonmetal mining sectors: shell
dredging, sand, gravel, stone, clay, colloidal phosphate, and
limestone. Since fiscal year 1980, Congress has prohibited MSHA from
enforcing existing MSHA health and safety training regulations in 30
CFR part 48 at mines ("exempt mines'') in these sectors of the surface
nonmetal mining industry. The exempt mines that are not currently in
compliance with the existing part 48 training requirements would incur
costs of approximately $17 million annually to comply with the proposed
rule, while those currently in compliance with the existing part 48
training requirements would derive savings of approximately $2.1
million annually.
Over the past 20 years, MSHA has consistently categorized a mine as
being small if it employs fewer than 20 workers and as being large if
it employs 20 or more workers. For the purposes of this PREA, however,
MSHA has identified three mine size categories based on the number of
employees, which are relevant to the estimation of the cost of the
proposed rule: (1) Mines employing 5 or fewer workers; (2) mines
employing between 6 and 19 workers; and (3) mines employing 20 or more
workers. These mine categories are important because they are believed
to have significantly different compliance rates for existing part 48
training requirements. For this proposed rule, MSHA estimates that the
following percentages of exempt mines by size category are currently
not in compliance with existing part 48 requirements: 60 percent of
mines with 5 or fewer workers; 40 percent of mines with between 6 and
19 workers; and 20 percent of mines with 20 or more workers.
In 1997, there were 10,152 exempt mines covered by the proposed
rule. MSHA estimates that the average cost per exempt mine to comply
with the proposed rule would be approximately $1,500 annually. For the
5,297 exempt mines with 5 or fewer workers, MSHA estimates that the
average cost of the proposed rule per mine would be approximately
$1,100 annually. For the 3,498 exempt mines with between 6 and 19
employees, MSHA estimates that the average cost of the proposed rule
per mine would be approximately $1,700 annually. For the 1,357 exempt
mines with 20 or more employees, MSHA estimates that the average cost
of the proposed rule per mine would be approximately $2,300 annually.
These costs per mine may be slightly misleading insofar as the
exempt mines currently in compliance with part 48 training requirements
would also be substantially in compliance with the proposed rule and
would therefore incur no compliance costs. In fact, as noted above,
these mines would derive savings of approximately $2.1 million annually
as a result of the proposed rule. For the exempt mine operators
(including independent contractors that employ miners) not currently in
compliance with part 48 training requirements, the annual cost of
complying with the proposed rule would, on average, be approximately
$1,800 per mine operator with 5 or fewer workers; $4,400 per mine
operator with between 6 and 19 workers; and $15,500 per mine operator
with 20 or more workers.
Table IV-1 from the PREA summarizes the yearly costs of the
proposed rule by mine size and by provision.
[[Page 18503]]
Table IV-1.--Summary of Yearly Compliance Costs for the Proposed Rule *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mines with 1-5 Mines with 6-19 Mines with 20+ Total cost for Total cost for
Requirement/provision employees employees employees all mines other parties Total cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec. 46.3........................................ $18,567 $8,102 $3,013 $29,682 $841 $30,523
Sec. 46.5........................................ 2,431,069 1,943,402 762,385 5,136,856 ............... 5,136,856
Sec. 46.6........................................ 389,353 281,137 99,589 770,079 ............... 770,079
Sec. 46.7........................................ 225,783 450,693 441,197 1,117,672 ............... 1,117,672
Sec. 46.8........................................ 2,131,047 2,520,492 1,482,488 6,134,027 ............... 6,134,027
Sec. 46.9........................................ 81,563 173,352 168,280 423,195 ............... 423,195
Sec. 46.11....................................... 579,807 506,046 196,788 1,282,641 1,282,641 2,565,282
-----------------------------------------------------------------------------------------------------
Total....................................... 5,857,188 5,883,255 3,153,740 14,894,153 1,283,482 16,177,635
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Source: Table IV-12, Table IV-17, Table IV-19, Table IV-20; Table IV-23, Table IV-25, and Table IV-26.
Benefits
Safety and health professionals from all sectors of industry
recognize that training is a critical element of an effective safety
and health program. Training informs miners of safety and health
hazards inherent in the workplace and enables them to identify and
avoid such hazards. Training becomes even more important in light of
certain factors that can exist when production demands increase, such
as an influx of new and less experienced miners and mine operators;
longer work hours to meet production demands; and increased demand for
contractors who may be less familiar with the dangers on mine property.
Although there may be some differences in production technology and
the production environment between the exempt mining industry and other
surface nonexempt mining industries, the data presented in Chapter III
of the PREA show that the lack of training in exempt mines contributes
significantly to the disproportionate number of fatalities that occur
at such mines. From 1993 to 1997, there were 200 fatalities at surface
mines, of which 163 occurred at exempt mines. Thus, exempt mines
accounted for 82 percent of all fatalities at surface mines. During the
same period, however, employees at exempt mines accounted for only 64
percent of the total number of hours worked at surface mines.
One of the major reasons that exempt mines experience a higher
fatality rate than the surface mining industry as a whole is that
smaller operations, those which employ fewer than 20 workers, make up
the vast majority of exempt mines. These small operations have the
highest rates of noncompliance with part 48 training and, not
surprisingly, the highest fatality rates.
It is plausible to assert that at least some of these fatalities
may have been prevented if victims had received appropriate, basic
miner safety training. Similarly, MSHA believes that compliance with
the requirements of this proposed training rule would, in turn, reduce
the number of fatalities at exempt mines. As discussed in greater
detail in Chapter III of the PREA, MSHA estimates that compliance with
the proposed rule would prevent about 10 fatalities per year. Although
not quantified, MSHA further expects that better trained exempt miners
would have a positive impact on reducing mining accidents, injuries,
and illnesses. MSHA believes that this proposed rule would make
training more responsive to the needs of the industry and more
effective for individual miners, thereby raising the compliance rate
and reducing mine injuries and fatalities.
IV. Executive Order 12875: Enhancing the Intergovernmental
Partnership
Executive
Order (E.O.) 12875 requires executive agencies and
departments to reduce unfunded mandates on State, local, and tribal
governments; to consult with these governments prior to promulgation of
any unfunded mandate; and to develop a process that permits meaningful
and timely input by State, local, and tribal governments in the
development of regulatory proposals containing a significant unfunded
mandate. E.O. 12875 also requires executive agencies and departments to
increase flexibility for State, local, and tribal governments to obtain
a waiver from Federal statutory or regulatory requirements.
There are 152 sand and gravel, surface limestone, and stone
operations that are run by State, local, or tribal governments for the
construction and repair of highways and roads. We believe that all of
these state-owned mines are in compliance with the proposed rule's
provisions. The Agency specifically solicits comments and any data to
either support or refute this assumption.
V.
Unfunded Mandates Reform Act of 1995
We have determined that, for purposes of section 202 of the
Unfunded Mandates Reform Act of 1995, this proposed rule does not
include any federal mandate that may result in increased expenditures
by State, local, or tribal governments in the aggregate of more than
$100 million, or increased expenditures by the private sector of more
than $100 million. Moreover, the Agency has determined that for
purposes of section 203 of that Act, this proposed rule does not
significantly or uniquely affect these entities.
Background
The Unfunded Mandates Reform Act was enacted in 1995. While much of
the Act is designed to assist the Congress in determining whether its
actions will impose costly new mandates on State, local, and tribal
governments, the Act also includes requirements to assist federal
agencies to make this same determination with respect to regulatory
actions.
Analysis
Based on the analysis in the Agency's PREA, the net compliance cost
of this proposed rule for the surface nonmetal mine operators is about
$14.9 million per year. Accordingly, there is no need for further
analysis under section 202 of the Unfunded Mandates Reform Act.
MSHA has concluded that small governmental entities are not
significantly or uniquely impacted by the proposed regulation. MSHA
estimates that approximately 185 sand and gravel, surface limestone,
and stone operations are run by State, local, or tribal governments.
The Agency believes that all of these state-owned mines are in
compliance with the proposed rule's provisions.
When MSHA issues the proposed rule, we will affirmatively seek
input of any State, local, and tribal government which may be affected
by this
[[Page 18504]]
rulemaking. This would include state and local governmental entities
that operate sand and gravel, surface limestone, and stone operations
in the construction and repair of highways and roads. MSHA will mail a
copy of the proposed rule to approximately 185 such entities.
VI.
Executive Order 13045: Protection of Children from Environmental Health Risks
and Safety Risks
In accordance with E.O. 13045, MSHA has evaluated the environmental
health and safety effects of the proposed rule on children. MSHA has
determined that the proposed rule would have no effect on children.
VII. Executive Order 13084 (Consultation and
Coordination With Indian Tribal Governments)
MSHA certifies that the proposed rule would not impose substantial
direct compliance costs on Indian tribal governments.
VIII. Statutory and
Rulemaking Background
Until 1977, the metal and nonmetal mining industries and the coal
mining industry were covered by separate occupational health and safety
statutes. The Federal Coal Mine Health and Safety Act of 1969 (1969
Coal Act) governed the coal mining industry. The Federal Metal and
Nonmetallic Mine Safety Act of 1966 (1966 Metal Act) governed the metal
and nonmetal mining industries. The 1966 Metal Act was the first
federal statute directly regulating non-coal mines. The 1969 Coal Act
authorized promulgation of mandatory safety and health standards for
coal mines, but the safety and health regulations promulgated under the
1966 Metal Act for metal and nonmetal mines were largely advisory.
Passage of the Federal Mine Safety and Health Act of 1977 (1977
Act), 30 U.S.C. 801 et seq.--
(1) placed coal mines and metal and nonmetal mines under a
single statute;
(2) substantially increased the health and safety protections
afforded all miners, but particularly metal and nonmetal miners; and
(3) applied to all mining and mineral processing operations in
the United States, regardless of size, number of employees, or
method of extraction.
Thus, the Mine Safety and Health Administration (MSHA), the agency
charged with carrying out the mandates of the 1977 Mine Act, regulates
and inspects two-person sand and gravel pits, as well as large
underground coal mines and processing plants employing hundreds of
miners.
Neither the 1969 Coal Act nor the 1966 Metal Act contained
comprehensive requirements for health and safety training of miners.
However, in the 1977 Mine Act, Congress clearly recognized training as
an important tool for preventing accidents and avoiding unsafe and
unhealthful working conditions in the nation's mines. Consistent with
this determination, section 115 of the 1977 Act directed the Secretary
of Labor to promulgate regulations requiring that mine operators
subject to the Act establish a safety and health training program for
their miners.
MSHA published regulations in 30 CFR part 48 on October 13, 1978
(43 FR 47453), implementing section 115 of the 1977 Mine Act. At that
time, certain segments of the mining industry strongly believed that
the new training regulations were designed for large and highly
technical operations and, therefore, were inappropriate and impractical
for smaller surface nonmetal mines. Industry representatives expressed
their concern over the difficulties that many small nonmetal operators
would have in complying with part 48 and requested relief from its
comprehensive specifications.
In 1979, various segments of the metal and nonmetal mining industry
raised concerns with Congress regarding the appropriateness of applying
the requirements of part 48 to their operations. Congress responded by
inserting language in the Department of Labor's appropriations bill
that prohibited the expenditure of appropriated funds to enforce
training requirements at approximately 10,200 surface nonmetal work
sites. Congress has inserted this language into each Department of
Labor appropriations bill since fiscal year 1980. This language
specifically prohibits the use of appropriated funds to:
* * * carry out Sec. 115 of the Federal Mine Safety and Health
Act of 1977 or to carry out that portion of Sec. 104(g)(1) of such
Act relating to the enforcement of any training requirements, with
respect to shell dredging, or with respect to any sand, gravel,
surface stone, surface clay, colloidal phosphate, or surface
limestone mine.
This
language remains in place under our appropriations contained in the Omnibus
Appropriations Act for 1999, P.L. 105-277, signed by the President on October
21, 1998. The 1999 training rider, however, authorizes us to expend funds to
propose and promulgate final training regulations by September 30, 1999, for
operations affected by the prohibition.
IX. General Discussion
Crushed stone and sand and gravel account for the
majority of operations where we cannot enforce training requirements. The United
States Geological Survey, United States Department of the Interior (USGS),
derives domestic production data for crushed stone and sand and gravel from
voluntary surveys of U.S. producers. USGS makes these data available in
quarterly Mineral Industry Surveys and in annual Mineral Commodities Summaries.
Annual crushed stone tonnage ranks first in the nonfuel minerals industry, with
annual sand and gravel tonnage ranking second. USGS data show that domestic
production of sand and gravel and crushed stone increased every year between
1991 and 1999, an indication of the continuing strong demand for construction
aggregates in the United States.
The number of hours worked at sand and gravel and crushed stone operations
has been increasing steadily since 1991. In 1991, the hours worked at crushed
stone operations totaled approximately 104 million employee-hours, rising to 117
million employee-hours in 1997. Similarly, the number of employee-hours at sand
and gravel operations rose from approximately 65 million in 1991 to 72 million
in 1997. Based on hours reported for the first nine months of 1998, the total
hours worked for 1998 will exceed the total hours worked in 1997. Although some
of the increase in hours worked may result from longer workdays, the data
strongly suggest that the aggregates industry workforce is growing.
Crushed stone and sand and gravel
are essential and used widely in all major construction activities, including
highway, road, and bridge construction and repair projects, as well as
residential and nonresidential construction. Although crushed stone is also used
as a basic raw material in agricultural, and chemical and metallurgical
processes, it is used mostly by the construction industry. The construction
industry also is by far the largest consumer of sand and gravel. Consequently,
the level of construction activity largely determines the demand for, and
resulting production levels of, these aggregate materials.
On June 9, 1998, President Clinton signed the
Transportation Equity Act for the 21st Century, commonly known as "TEA-21''
(Pub. L. 105- 178), which authorizes highway, highway safety, transit, and other
surface transportation programs for the fiscal years 1998 to 2003. The demand
for materials
[[Page 18505]]
produced by the surface
nonmetal mining industry is anticipated to increase substantially due to, in
significant part, transportation infrastructure construction resulting from the
recent enactment of TEA- 21. TEA-21 builds on the initiatives established in the
Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), which was the
last major authorizing legislation for surface transportation. As the largest
public works legislation in the nation's history, appropriating almost $218
billion for highway and transit programs, TEA-21 provides a 40 percent funding
increase over the ISTEA levels for such programs.
In addition to the passage of TEA-21, other factors may
also contribute to the continued growth in construction activity and, thus, the
demand for aggregate materials. These include a healthy U.S. economy in general,
low interest rates, and adverse weather conditions, such as from El Nino and La
Nina, which have damaged and destroyed homes, roads, and bridges in various
parts of the country.
Since
fiscal year 1980, the year in which the congressional appropriations rider took
effect, more than 600 miners have been killed in occupationally related
incidents at mines where we cannot enforce miner training requirements
("exempt mines''). The rider affects approximately 10,200 surface nonmetal
mines and 120,000 miners. Approximately 9,200 of these sites are surface
aggregate operations (sand and gravel and crushed stone); the remainder are
surface operations mining other commodities such as clay or colloidal phosphate.
Our data indicate that, of the
200 miners involved in fatal accidents at surface metal and nonmetal mines from
1993 to 1997, about 80% (163 miners) worked at exempt mines. During this same
period, the annual number of fatal accidents at exempt mines almost doubled
(from 24 fatalities in 1993 to 45 fatalities in 1997). In each of the years 1996
and 1997, 90% of fatalities at surface metal and nonmetal mines occurred at
operations affected by the appropriations rider.
A large proportion of exempt mines are smaller operations,
which experience a higher fatality rate than larger operations. For example, of
the 9,200 aggregate mines, approximately 4,900 employ five or fewer miners, and
approximately 8,100 employ fewer than 20 miners. Long-term data show that mines
with fewer than six employees are three times as likely to experience fatalities
as mines with 20 or more workers. Also, mines with between six and 19 employees
are more than two times as likely to have fatal accidents as operations with
larger workforces. Several other reasons may contribute to the number of fatal
accidents, including--
(1) An influx of new and less experienced miners
and mine operators;
(2) Longer work hours to meet
production demands; and
(3) Increased demand for
contractors who may be less familiar with the dangers on mine property. All
of these factors are also more likely to exist when production activity
accelerates to meet increases in demand.
We believe that some of these
fatalities may have been prevented if victims had received appropriate, basic
miner safety training. Our fatal accident investigations show that the majority
of miners involved in fatal accidents at mines affected by the rider had not
received health and safety training that complied with the requirements of part
48. In 1997, for example, 80% of fatal accident victims at exempt mines had not
received health and safety training in accordance with part 48.
Safety and health professionals from all
sectors of industry recognize that training is a critical element of an
effective safety and health program. Training of new employees, refresher
training for experienced miners, and training for new tasks serve to inform
workers of safety and health hazards inherent in the workplace and, just as
important, to enable workers to identify and avoid those hazards. Congress
clearly recognized these principles by specifically including training
provisions in the 1977 Mine Act.
The legislative history to the 1999 Appropriations Act reveals
congressional concern with our inability to enforce training requirements for
the exempt industries. The Senate Report associated with the Senate
appropriations bill for fiscal year 1999 states:
The Committee has continued language carried in the bill
since fiscal year 1980 prohibiting the use of funds to carry out the training
provisions of the Mine Act with respect to shell dredging, or with respect to
any sand, gravel, surface stone, surface clay, colloidal phosphate, or surface
limestone mine. The Committee recommends including this language for another
year. However, the Committee finds the agency's data regarding the number of
untrained workers in these industries who are exposed to the risks and hazards
associated with the mining environment disturbing. Therefore, the Committee
intends for fiscal year 1999 to be the last year this provision will be
contained in the bill.
S. Rep.
No. 105-300 for S. 2440, 105th Cong., 2d Sess., (1998). In the Conference Report
to the Omnibus Appropriations Act for 1999, Congress recognizes the high
priority that employee safety and health training should have for the mining
industry. However, Congress also notes that both we and the industries affected
by the rider acknowledge that existing part 48 regulations do not address either
the industries' or miners' needs in the most effective manner. In the Report,
Congress reaffirms the priority to provide health and safety training for miners
and directs us to expeditiously develop appropriate training regulations for
miners working in these industries. The Conference Report also specifies that we
must submit a progress report on the training regulations before appropriations
hearings on our fiscal year 2000 budget and that we work cooperatively with
labor and industry representatives to disseminate information on the revised
training requirements in the period between the publication of the final rule
and its effective date.
The
Conference Report language specifically instructs us to:
* * * work with the affected industries, mine
operators, workers, labor organizations, and other affected and interested
parties to promulgate final training regulations for the affected industries
by September 30, 1999. It is understood that these regulations are to be
based on a draft submitted to MSHA by the Coalition [for Effective Miner
Training] no later than February 1, 1999
. H.R. Rep. No. 105-825 for H.R.
4328, 105th Cong., 2d Sess. (1998).
The Coalition for Effective Miner Training (Coalition) consists of
associations that represent industries currently exempt from miner training
requirements. Coalition members include:
American Portland Cement Alliance
China Clay Producers Association
Dry Branch Kaolin
Company
Georgia Crushed Stone Association
Georgia Mining Association
Indiana
Mineral Aggregates Association
National Aggregates
Association
National Industrial Sand Association
National Lime Association
National
Stone Association
North Carolina Aggregates
Association
Arizona Rock Products Association
Construction Materials Association of California
Sorptive Minerals Institute
United
Metro Materials
Virginia Aggregates Association
In 1998, the Coalition initiated a
process to outline an alternative regulatory approach to part 48 for miner
training in the exempt industries. This process included working with industry
and labor organizations during the course of the development of its
[[Page 18506]]
proposal. On February 1, 1999, the
congressionally established deadline, the Coalition presented us with a final
joint industry/labor draft proposed rule.
To facilitate the broadest possible input from the
regulated public, we held seven preproposal public meetings throughout the
country in December 1998 and January 1999 to solicit comments on development of
the miner training rule for exempt mines. We selected meeting locations in
California, Colorado, Georgia, Illinois, New York, Oregon, and Texas to provide
as many miners, miners' representatives, and mine operators, both large and
small, with the opportunity to attend at least one of the meetings and present
their views. The public was encouraged to comment on any issue related to miner
safety and health training at exempt mines. The Federal Register notice
announcing the schedule of public meetings (63 FR 59258, November 3, 1998)
listed key issues on which we were specifically interested in receiving
comments. The issues included:
- Should certain terms, including "new miner''
and "experienced miner'' be defined?
- Which subjects should be taught before a new miner
is assigned work, even if the work is done under close supervision?
- Should training for inexperienced miners be given
all at once, or over a period of time, such as several weeks or months?
- Should supervisors be subject to the same training
requirements as miners?
- Should task training be required whenever a miner
receives a work assignment that involves new and unfamiliar tasks?
- Should specific subject areas be covered during
annual refresher training? If so, what subject areas should be included?
- Can the 8 hours of annual refresher training
required by the Mine Act be completed in segments of training lasting less
than 30 minutes?
- Should the records of training be kept by the mine
operator at the mine site, or can they be kept at other locations?
- Should there be minimum qualifications for persons
who conduct miner training? If so, what qualifications are
appropriate?
More than 220 individuals, including representatives from
the Coalition, labor, contractors, mining associations, State agencies, small
and large operators, and trainers, attended the meetings. Many of the attendees
made oral presentations at the meeting, offering their views on effective miner
training. In addition, we have received a number of written comments on how to
ensure effective miner safety and health training.
Speakers at the public meetings and other commenters
generally emphasized the importance of developing a training rule that provides
you with the flexibility to tailor your miner training programs to your
particular operations and workforce. Several speakers underscored the need for
practical and workable training requirements to meet the needs of the wide
variety of mines that will be affected by the new training rule. Others
commented on training for employees of independent contractors working on mine
property, recordkeeping requirements, and appropriate qualifications for persons
who will provide training. In addition, speakers at every meeting commented on
the need for consistent implementation of the final training rule and the
increased involvement of MSHA and the state grantees in providing training
assistance and materials.
X.
Discussion of the Proposed Rule
A. Statutory Requirements
Section 115(a) of the 1977 Act authorizes the Secretary of Labor to
promulgate miner health and safety training regulations; section 115(a), (b),
and (c) also include minimum requirements for miner training programs. The
training regulations proposed here for miners working at shell dredging, sand,
gravel, surface stone, surface clay, colloidal phosphate, and surface limestone
operations are consistent with these minimum requirements, which provide among
other things, that:
- Each operator must have a health and safety program
approved by the Secretary of Labor;
- Each approved training program for new surface
miners must provide for at least 24 hours of training in certain specific
courses, including:
- The statutory rights of miners and their
representatives under the Act;
Use of self-rescue and respiratory devices,
where appropriate;
Hazard recognition;
Emergency procedures;
Electrical hazards;
First aid;
Walkaround training; and
The health and safety aspects of the task to which the miner will
be assigned;
- Each approved training program must provide for at
least eight hours of refresher training every 12 months for all miners;
- Miners reassigned to new tasks must receive task
training prior to performing that task;
- New miner training and new task training must
include a period of training as closely related as is practicable to the
miner's work assignment;
- Training must be provided during normal working
hours;
- During training, miners must be paid at their
normal rate of compensation and reimbursed for any additional cost for
attending training;
- Upon completion of each training program, each
operator must certify, on a form approved by the Secretary, that the miner
has received the specified training in each subject area of the approved
health and safety training plan;
- A certificate for each miner must be maintained by
the operator, and be available for inspection at the mine site;
- A copy of the certificate must be given to each
miner at the completion of the training;
- When a miner leaves the operator's employ, the
miner is entitled to a copy of his or her health and safety training
certificates;
- False certification by an operator that training
was given is punishable under section 110(a) and (f) of the 1977 Mine Act;
and
- Each health and safety training certificate must
indicate on its face, in bold letters, printed in a conspicuous manner, that
such false certification is so punishable.
The proposed training rule
takes a performance-oriented approach, where possible, to afford currently
exempt operations, particularly small operations, the flexibility to tailor
miner training to their particular needs and methods of operation. For example,
the proposal would give you the latitude to choose many of the topics addressed
in training and the amount of time to be spent on each topic. Also it would
allow you to keep training records in a format of your choice, as long as the
records include the minimum information specified in the rule.
B. Summary of Proposed Rule
We currently anticipate that the
part 46 final rule will be consistent with existing part 48 training
requirements, so that those of you who have implemented a safety and health
training program that complies with part 48 would not have to alter your
programs to comply with proposed part 46. However, we request comment on whether
the final rule should specifically allow you the option of complying with the
requirements of part 48, in lieu of part 46.
The proposed rule would require
you to develop and implement a written training plan that includes programs for
training new and experienced miners, training miners for new tasks, annual
refresher training, and hazard training. Plans that include the minimum
information specified in the proposal would be considered approved by us and
would not be required to be submitted to us for formal review, unless you, the
miners, or miners' representative requests it.
The proposal would require new miners to receive 24 hours
of training within 60 days of employment. Instruction in four specific areas
must be provided before the miner begins work--
[[Page 18507]]
(1) Introduction to the work environment;
(2) Recognition and avoidance of hazards at the
mine;
(3) Escape and emergency evacuation plans in
effect at the mine, and firewarning signals and firefighting procedures;
and
(4) Health and safety aspects of the tasks to be
assigned.
The remainder of new miner training would be required to be
completed within 60 days, and would address, at a minimum, the subjects
specified in section 115 of the Mine Act.
Under the proposal, newly-hired experienced miners would
receive instruction, before beginning work, in the same four topics required to
be covered for new miners before they begin work. Newly-hired experienced miners
would receive annual refresher training within 90 days, including instruction on
several specific topics.
Every
12 months, all miners would receive no less than eight hours of refresher
training, which at a minimum would address major changes at the mine. Under the
proposal, you would have the flexibility to determine the other subject areas to
be covered in refresher training.
The proposal would require new task training for every miner before the
miner is assigned to a task for which he or she has no previous experience or
which has changed. Site-specific hazard training would be required for persons
who do not fall within the definition of "miner'' and who would therefore
not be required to receive comprehensive training (i.e., new miner training or
newly-hired experienced miner training, as appropriate). The proposal would also
require site- specific hazard training for employees of independent contractors
who have received comprehensive training but who need orientation in the hazards
of the mine where they will be working.
You would be required to certify that a miner has received
required training and retain a copy of each miner's certificate for the duration
of the miner's employment and for 12 months after the employment ends. Under the
proposal, you could use our existing form for the certification (MSHA Form
5000-23) or maintain the certificate in another format, so long as it contains
the minimum information listed in the proposal. You would also be required to
maintain a copy of the current training plan in effect at the mine. You would be
allowed the flexibility of keeping training records at the mine site or at a
different location, but would be required to provide copies of the records to us
and to miners and their representatives upon request.
Unlike part 48, we would not approve training
instructors under the proposal. Instead, training could be provided by a
competent person-- someone with sufficient ability, training, knowledge, or
experience in a specific area, who would also be able to evaluate the
effectiveness of the training provided.
The proposal would adopt the Mine Act requirement that
miners be trained during normal work hours and compensated at normal rates of
pay. Miners would also be reimbursed for incidental costs, such as mileage,
meals, and lodging, if training is given at a location other than the normal
place of work.
The proposal
would allow you, where appropriate, to substitute equivalent training required
by OSHA or other federal or state agencies to satisfy your training obligations
under part 46.
Finally, the
proposal would address responsibility for training and would vest primary
responsibility for site-specific hazard training with the production-operator.
Additionally, independent contractors who employ miners required to receive
comprehensive training under the proposal would be primarily responsible for
ensuring that their employees satisfy these requirements.
C. Section-by-Section Discussion
The following
section-by-section portion of the preamble discusses each proposed provision.
The text of the proposed rule is included at the end of the document.
Section 46.1 Scope
This section provides that the
provisions of part 46 set forth mandatory requirements for the training and
retraining of miners at all shell dredging, sand, gravel, surface stone, surface
clay, colloidal phosphate, or surface limestone mines.
Corresponding changes for part 48 have been
included in this proposal and are intended to make clear to the mining community
that part 46 training requirements will apply at those mines which have been
subject to the congressional appropriations rider since fiscal year 1980. This
section is consistent with a similar provision in the draft proposal of the
Coalition for Effective Miner Training.
Commenters should be aware that the language of the rider
describes the exempt operations in broad terms. It does not attempt to list each
type of operation that is included within the category listed. For example,
operations that produce marble, granite, sandstone, slate, shale, traprock,
kaolin, cement, feldspar, and lime are also exempt from enforcement under the
rider and would be affected by the requirements of this rule.
Several commenters were of the opinion that the
new training regulations for mines that are currently exempt from enforcement
should be incorporated into part 48. However, to avoid confusion, we have
proposed these regulations under a separate part of Title 30 of the Code of
Federal Regulations.
Although the requirements of this proposed part would amend
the training requirements for surface miners in part 48, part 48 has not been
enforced at exempt mines for almost 20 years. The proposed rule takes a more
flexible and performance-oriented approach than similar provisions in part 48.
For example, the proposed rule would not require our traditional approval of
training plans; would give you greater latitude in determining what subjects
should be included in your miner training programs and in recordkeeping; and
would not mandate a formal instructor approval program.
We are mindful of our statutory obligation not to
reduce the protections provided to miners under our existing standards. Under
section 101(a)(9) of the 1977 Act, "[n]o mandatory health or safety
standard promulgated under this title shall reduce the protection afforded
miners by an existing mandatory health or safety standard.'' Although the
proposal would allow greater flexibility to you in training plan content and
implementation, protection to miners would not be reduced. Our approach in this
proposal is to allow you, with the assistance of miners and their
representatives, to tailor your miner training programs to the specific needs of
your operations and workforce. In this way, training received by miners would be
relevant to their workplace and would be effective in providing them with the
information and instruction that will enhance their ability to work in a safe
and healthful manner. Several commenters stated that the flexibility to design
their training programs to address the most significant safety and health
concerns at their mines would enhance the overall benefits of training for their
miners.
It should be noted
that this proposal does not affect those mines not subject to the rider, which
would include all underground metal and nonmetal mines, all surface metal mines,
all coal mines, and a few surface nonmetal mines, such as surface boron and talc
mines. Operators at those mines will continue to be responsible for complying
with the miner training provisions in part 48.
[[Page 18508]]
Section 46.2 Definitions
This section includes definitions for terms used in proposed part 46.
These definitions are provided to assist the mining community in understanding
the requirements of the proposed rule. We are interested in comments on whether
the definitions, as proposed, are appropriate and clearly expressed. Commenters
should also identify any other terms they believe should be defined in the final
rule.
Act. All references to the "Act'' in the proposal refer to the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq.
Competent
person. Under the proposal, training would be conducted by a "competent
person'' designated by you. "Competent person'' is defined in the proposal
as a person who has the ability, training, knowledge, or experience to provide
training to miners on a particular subject. Under this definition, the competent
person must be able to evaluate whether the training given to miners is
effective.
This definition
does not specify the type or extent of ability, training, knowledge, or
experience needed for a person to be "competent'' and, therefore, allowed
to provide training under the rule. This is consistent with the
performance-oriented approach taken in the proposal. As addressed in greater
detail in the preamble under Sec. 46.4, a number of commenters recommended that
persons who provide training receive, at a minimum, some instruction to ensure
that they are able to instruct miners effectively. The proposal does not adopt
this recommendation. Instead, we leave it to your discretion to determine
whether the person is competent to provide training to miners in one or more
subjects.
We specifically
solicit comments on the definition of "competent person,'' whether the
final rule should establish specific minimum qualifications for training
instructors, and whether the final rule should require that training instructors
be approved by us, similar to the approach taken in the part 48 regulations.
Experienced miner. A number of commenters addressed the definition of
the term "experienced miner.'' Several commenters suggested that part 46
should adopt the definition of "experienced miner'' in the part 48 training
regulations. Recent revisions to part 48 (63 FR 53750, October 6, 1998) define
"experienced miner'' as a person with at least 12 months of experience who
has completed new miner training. Other commenters recommended that a miner be
considered experienced if he or she either has received new miner training or
has accumulated at least 12 months of mining experience or the equivalent. One
commenter stated that the definition of experienced miner should allow miners
with experience to return to mining after an extended absence or lay-off and
still be considered experienced.
A miner would be "experienced'' under the proposal if he or she
satisfies one of three definitions. First, paragraph (c)(1)(i) provides that an
experienced miner is a person employed as a miner on the date of publication of
this proposal. Most regularly employed miners would be considered
"experienced'' under this definition, and therefore not subject to the
rule's new miner training requirements. This is similar to the approach taken
when part 48 first took effect in 1978, which provided that all persons employed
as miners on the rule's effective date were experienced miners, regardless of
the length of their mining experience or the extent of their safety and health
training. Under the proposed definition, most miners working on the date of the
proposed rule will have accrued several months of experience by the publication
date of the final rule, and even more experience by the rule's effective date.
Under the proposed definition,
however, a miner with many years of experience who happens to be out of work on
the date of the proposed rule would not be an "experienced miner''. We are
uncertain as to whether this would have an adverse impact at some operations,
particularly in light of the intermittent and seasonal nature of many operations
that will be covered by the final rule. We are therefore interested in whether
commenters believe that the rule should address this situation in some fashion
and, if so, what specific provisions should be included in the final rule to
deal with this issue.
A miner
would also be experienced under paragraph (c)(1)(ii) if he or she begins
employment at a mine after the date of publication of the proposal but before
the effective date of the final rule, and has received new miner training
consistent with the requirements proposed under Sec. 46.5 or with existing
requirements for surface miners at Sec. 48.25. This would provide flexibility to
those of you who are already providing training to your miners under part 48, or
who wish to provide training under the more performance-oriented requirements of
proposed part 46, before the final rule takes effect. This provision is not
intended to require compliance with the proposed rule, but would be a voluntary
option for those of you who want to get an early start on developing a training
program and in complying with the rule.
Under paragraph (c)(1)(iii) a person who has completed 24
hours of new miner training under either Sec. 46.5 or Sec. 48.25 and who has at
least 12 months of surface mining or equivalent experience would be an
experienced miner. This definition is more stringent than the approach suggested
by a number of commenters or in the Coalition draft, which would define
"experienced miner'' as a person who either has 12 months of experience or
who has received the required 24 hours of new miner training, but not both. The
definition in the proposed rule reflects our preliminary determination that an
"experienced miner'' should have both training and work experience.
Additionally, we also recognize that it would be unduly burdensome and
impractical to require all miners who are currently working at affected mines to
receive new miner training. Many of these miners have extensive experience in
the industry and should not be treated as new inexperienced miners. Consistent
with this, under paragraphs (c)(1)(i) and (ii), the majority of miners who have
been trained or who have relevant work experience would be considered
experienced when the final rule goes into effect.
The proposal would allow a miner to accumulate the
necessary 12 months of experience in non-consecutive months. This would respond
to the concerns of several commenters that the intermittent and seasonal nature
of many segments of the industry would make it difficult, if not impossible, for
most miners to accrue the necessary experience in one continuous period.
The proposed definition would also
allow equivalent experience to be counted towards the 12-month requirement. We
intend that equivalent experience would include such things as work at a
construction site or other types of jobs where the miner has job duties similar
to the duties at the mine where he or she is employed. Commenters stated that
similar work experience should be considered if the work performed is equivalent
to the tasks that the person will perform at the mine. Commenters stated that
many experienced construction workers have learned to work safely at
construction sites that pose many of the same types of hazards that they could
be exposed to at a mine site. Under the proposal, you would determine whether
the miner's experience is equivalent and therefore whether the miner is
"experienced.'' We request comments on the acceptance of
[[Page 18509]]
equivalent experience under this paragraph in determining
who is an "experienced miner.''
Paragraph (c)(2) provides that an experienced miner will retain that
status permanently under part 46. This responds to several commenters who
indicated that it was not uncommon for miners to be away from the mining
industry for extended periods of time, either because the miners took jobs in
another industry, such as construction, or because the miners had been laid off.
These commenters recommended that the rule make clear that an absence from work
in the mining industry would not result in miners losing their status as
experienced miners. This paragraph responds to these concerns and is also the
approach taken in the recent revisions to part 48. Once a miner attains the
status of an "experienced miner,'' he or she would be considered
experienced permanently. However, under proposed Sec. 46.6, miners returning to
mine work would be required to receive newly-hired experienced miner training
and annual refresher training within 90 days of beginning work.
Extraction or
production. The definition of the term "miner'' includes persons
engaged in "extraction or production.'' "Extraction or production'' is
defined in this section as the mining, removal, milling, crushing, screening, or
sizing of minerals at a mine. This definition also includes the associated
haulage of these materials at the mine. We request comments on whether this
definition adequately describes the activities that should be considered part of
the extraction and production processes at a mine.
Hazard training. The proposed
definition of "hazard training'' is intended to provide examples of the
type of instruction or information that you might address in providing this
training to miners under proposed Sec. 46.11. "Hazard training'' is defined
as information or instructions on the hazards a person will be exposed to while
on mine property, as well as on applicable emergency procedures. These hazards
and procedures may include site-specific risks such as unique geologic or
environmental conditions, traffic patterns, and restricted areas, as well as
warning and evacuation signals, emergency procedures, or other special safety
procedures. The purpose of this training is to ensure that those persons who are
unfamiliar with the mine and with the hazards of the operation have been
provided with enough information to avoid exposure to these hazards.
Independent contractor. The proposal defines "independent
contractor'' as a person or entity that contracts to perform services at a mine
under this part. This is consistent with the language of the Act, which includes
independent contractors who perform services or construction at a mine within
the definition of the term "operator.'' Miner. The proposal would define
"miner'' for purposes of part 46 training more narrowly than the Mine Act,
which defines "miner'' in section 3(g) as any individual working at a mine.
This allows the proposed rule to make a distinction between those "miners''
who would be required to receive comprehensive training (that is, new miner
training or newly-hired experienced miner training, as appropriate) and those
persons who would be required to receive hazard training.
A person would be considered a "miner''
under the proposal if he or she works at a mine under this part and is engaged
in mining operations integral to extraction or production. We gave serious
consideration to including as "miners'' persons who are regularly exposed
to mine hazards, or maintenance or service workers who work at the mine for
frequent or extended periods, consistent with the definition in part 48.
However, we are seeking to include a definition in the final rule that is
clearer than the existing part 48 definition.
The definition of "extraction or production'' includes
the mining, milling, crushing, screening, or sizing of minerals, as well as the
haulage of these materials. We intend that this definition include workers whose
activities are integral to the extraction or production process, such as persons
who are employed by the production-operator and who provide daily maintenance of
mining equipment on the mine site. We do not intend to include workers who come
onto mine property for short periods of time to perform services that are not
integral to extraction or production, such as manufacturers' representatives who
may be at the mine site infrequently to perform warranty service on mining
equipment; this type of activity is usually conducted by a person whose presence
at the mine site and exposure to typical mine hazards are limited. Although both
types of workers perform maintenance on equipment, the extent of their exposure
to mining operations and mine hazards is different, and the extent and type of
training required would also be different under the proposal. We intend that the
definition of "miner'' include those workers whose activities are related
to the day-to-day process of extraction or production. We have concluded that
these are the types of workers who should receive comprehensive training.
We believe this is one of the more
significant distinctions that should be made in this rule, and we solicit
comment on this issue. We are particularly interested in recommendations for
final rule language that would help to clarify the scope and application of this
definition. Specifically, we would like comments on whether the final rule
should include in the definition of "miner'' persons whose exposure to mine
hazards is frequent or regular, regardless of whether they are engaged in
extraction or production, or who are employed by the production-operator,
similar to the approach taken in part 48. Another possible approach would be to
characterize a person's activities more specifically in terms of how integral or
essential they are to extraction or production at the mine.
Under the proposal, mine operators and
supervisors would also be considered miners if they are engaged in extraction or
production and would be covered by the same training requirements. This is in
response to the statements by a number of commenters that there is no reason why
supervisors should not be subject to the same training requirements as miners.
Several commenters also recommended that training for supervisors be tailored to
address their supervisory responsibilities. Although we agree that it would be
appropriate for you to develop special training programs for your supervisory
personnel, the proposal would not require it.
Commenters should be aware that we intend that the
requirements of this rule apply to construction workers who work at mines
covered by the rule. Section 115(d) of the Act directs the Secretary of Labor to
develop "appropriate'' training regulations for construction workers. We
have determined that this statutory provision does not prohibit the application
of this part 46 standard to construction workers until we promulgate a separate
training rule for those workers. Therefore, construction workers whose
activities at the mine site are integral to extraction or production would be
considered "miners'' under this rule and must receive appropriate
comprehensive training. For example, construction workers building a new crusher
in an active quarry would be considered "miners.'' All other construction
workers at mine sites would be required to receive site-specific hazard
training. We solicit comments on whether we should develop separate training
standards specifically for construction workers
[[Page 18510]]
employed at mine sites, and if so, what type of training would be
appropriate.
New miner. The proposal defines a new miner as a person who has been
newly hired who does not satisfy the definition of "experienced miner.''
The definition of experienced miner is discussed in detail earlier in this
section.
Normal working hours. Under proposed Sec. 46.10, training would be
conducted during "normal working hours,'' as required by the Act.
"Normal working hours'' is defined in this section as a period of time
during which a miner is otherwise scheduled to work. This definition, adopted
from part 48, also provides that the sixth or seventh working day may be used to
conduct training, provided that the miner's work schedule has been established
for a sufficient period of time to be accepted as a common practice. As
discussed under Sec. 46.10 of the preamble, we intend that the schedule must
have been in place long enough to provide reasonable assurance that the schedule
change was not motivated by the desire to train miners on what had traditionally
been a non-work day.
We are
interested in comments on whether these proposed provisions adequately address
the issue of compensation and the scheduling of training.
Operator. The
proposed definition is consistent with the definition of "operator'' in
section 3(d) of the Act, and would include both production-operators (defined in
this section as owners, lessees, or other persons who operate or control a mine)
and independent contractors who perform services at a mine. The term
"operator'' is used throughout the proposed rule to refer to the person or
entities responsible for providing health and safety training under part 46.
However, separate definitions are provided for "production-operator'' and
"independent contractor'' in proposed Sec. 46.2 to allow a distinction to
be made in proposed Sec. 46.12 between the two types of operators and to address
production-operators' and independent contractors' responsibilities for
training.
Production-operator. Production-operator is defined as any owner,
lessee, or other person who operates, controls, or supervises a mine covered by
this part. This would mean the person or entity that actually operates the mine
as a whole, as opposed to an independent contractor who provides services. As
noted earlier, both would be considered "operators'' under the proposal.
Task. The proposal defines "task'' as a component of a job that
is performed on a regular basis and that requires job knowledge. This definition
is intended to identify the type of job duties that would be subject to the new
task training requirements proposed under Sec. 46.7. Under that section, a miner
must be provided with training in a task for which he or she has no previous
experience, or which has been modified.
We and us refer to the Mine Safety and Health
Administration (MSHA). We have written the proposal in the more personal style
advocated by the President's executive order on "plain language,'' which,
among other things, encourages the use of personal pronouns.
You refers to production-operators and
independent contractors, because they have primary responsibility for compliance
with MSHA regulations.
Section
46.3 Training Plans
This
section of the proposal requires you to develop and implement a training plan
and also addresses our approval of training plans, how and where a copy of the
training plan must be maintained, and who has access to the plan.
Section 115 of the Mine Act
provides that mine operators shall have a health and safety training program
that shall be "approved by the Secretary [of Labor].'' A number of
commenters and speakers at the public meetings supported flexible guidelines for
plan content, emphasizing the wide variety in size and type of mining operations
that will be covered by part 46 requirements. These speakers believed that the
most effective training plans would be those that can be tailored to the
particular operation, focusing, for example, on specific mine processes or
hazards, or on the accident and injury experience at the mine. Other commenters
stated that it had been their experience that the traditional approval process
often did not enhance or ensure the quality of training plans. These commenters
felt that resources saved by a less formal plan approval process could be
directed elsewhere with greater benefits for miner safety and health.
A number of commenters who
believed that traditional approval by us would not improve the development of
your training plans advocated some form of "automatic'' approval that would
eliminate the need for submission of a plan to us, saving time and reducing
paperwork for both you and us. These commenters suggested that the rule provide
that if a plan meets or exceeds reasonable standards, it would be considered
approved. Other commenters supporting this approach stated that emphasis should
be placed on assisting you in developing effective training plans, rather than
concentrating on unnecessary paperwork. Some commenters stated that they had no
problem with submitting plans to us for initial approval, but were concerned
about a requirement for submission of plans to us for approval of small,
essentially nonsubstantive changes to the plan, such as the identity of the
instructors providing the training or the locations where training takes place.
The draft proposal submitted
to us by the Coalition would provide that any training plan that complies with
the minimum requirements of section 115 of the Mine Act would be considered
"approved by the Secretary.'' Section 115 of the Act requires both that the
plan be approved by us and that the plan comply with the minimum requirements in
section 115. We have determined that in order for a plan to be considered
approved by us, we must prescribe requirements in the proposal and the final
rule beyond the minimum required in the Mine Act.
In response to these considerations, the proposal provides
that a plan would be considered "approved by MSHA'' if it includes the
minimum information listed in paragraph (b). This is consistent with the
approach recommended by several commenters. Under this approach, plans that
include the information listed in this section would be considered
"approved'' and would not be required to be submitted to us for review.
Inspectors and other MSHA personnel who review your plan at the mine site would
simply determine--
(1) That you, in fact, have developed a written
training plan;
(2) That the written plan contains
the minimum information specified in paragraph (b) of proposed Sec. 46.3;
and
(3) That the plan is being implemented
consistent with the plan specifications.
We have also included in the
proposal an alternate process for plan approval, for those cases where a plan
you developed does not include the minimum required information, where you may
prefer to obtain traditional approval, or where the miners or miners'
representative requests such approval.
Paragraph (a) provides that you must develop and implement a written
plan, approved by us under either paragraph (b) or (c), that contains effective
programs for training new miners and newly-hired experienced miners, training
miners for new tasks, annual refresher training, and hazard training. Although
the language in section 115 of the Act does not explicitly state that a training
plan must be in writing, we believe that it is inherently required by
[[Page 18511]]
the Act. We have included the term
"effective programs'' in the proposed rule to deal with instances where a
training plan, as implemented, is inadequate or deficient. In such cases, we
intend to determine how and why the training program falls short and assist you
in revising your plan to address the deficiencies. We also intend that the plan
be updated as needed, to reflect any changes in the mine's training program,
such as changes in courses, teaching methods, instructors, methods of training
evaluation, etc.
Paragraph (b)
provides that a training plan is considered approved by us if it contains the
minimum information listed in paragraphs (b)(1) through (b)(5). This information
includes--
(1) The company
name, mine name, and MSHA mine identification number;
(2) The name and position of the person responsible for training at the
mine, which may be the operator;
(3) A general
description of the teaching methods and course materials to be used in the
training, including the subject areas that will be covered and the approximate
time that will be spent on each subject area;
(4) The
persons who will provide training, and the subjects in which each person is
competent to instruct; and
(5) The evaluation procedures
used to determine the effectiveness of the training.
Our intention is that the information required
will be sufficient to allow us to make a preliminary determination of your
compliance with training requirements, without imposing an unnecessary paperwork
or recordkeeping burden. We are interested in comments on whether the proposed
approach will facilitate the development of effective training plans.
The approach taken in the proposal
for plan approval recognizes that, while our review of your written training
plan could provide an initial check on the quality of the program, such review
could not ensure that the program is successful in its implementation. Rather
than expending our resources on the review and approval of training plans at all
of the mines affected by this rule, we would instead direct those resources
toward verification of the effectiveness of training plans in their execution,
and in assisting you in developing and providing quality training to your
employees. Similarly, you and training providers would be able to focus on the
development and administration of training plans tailored specifically to your
needs rather than on traditional procedures to gain our approval.
Under this approach, you would be
free to make revisions to existing training plans without seeking our approval
of those changes, so long as the plan continues to include the minimum
information required. For example, you could change the identity of instructors,
the subjects addressed as part of the training, or the scheduling of training,
and you would not be required to submit these changes to us. This would address
the statements of many commenters that requiring our approval of subsequent
nonsubstantive plan changes was unduly burdensome and unnecessary.
We specifically solicit comments
on whether we should require information in addition to that listed in
paragraphs (b)(1) through (b)(5) before we consider a plan approved. We are also
interested in comments on whether we should require less information than what
is proposed. Several commenters stated that the rule should require only that
the training plan specify subject matter and the timing of the training, and
that other information is unnecessary. We also solicit comments on allowing you
to develop plans that are considered approved by us without traditional
approval. We are particularly interested in whether commenters believe that a
traditional plan approval process, similar to the process in part 48, is
necessary to ensure that training plans meet minimum standards of quality, and
why this may be true.
Paragraph (c) provides that a plan that does not include the minimum
information listed in paragraphs (b)(1) through (b)(5) must be approved by the
Educational Field Services Division Regional Manager, or designee, for the
region in which the mine is located. The term "Regional Manager'' refers to
the Regional Manager in the Educational Field Services Division (EFS) of the
Directorate of Educational Policy and Development (EPD). We will be moving the
responsibility for the approval of new and modified training plans from District
Managers in Coal and Metal and Nonmetal Mine Safety and Health to the EFS
Regional Managers or their designees. The EFS Division is divided into an
Eastern and a Western region.
Under this paragraph, you may also voluntarily submit a plan for Regional
Manager approval. We anticipate that the majority of plans developed under this
part would satisfy the requirements of paragraph (b) and consequently would not
be required to be submitted to us for traditional approval. However, we also
recognize that some of you may develop effective training plans that do not fit
squarely within the requirements of paragraph (b), and you may therefore need to
submit your plans to us for approval. We also anticipate that some of you may
prefer to obtain our traditional approval, to ensure that there is no question
that your training plan satisfies minimum requirements. In response, the
proposal does include a provision that would address these situations.
Paragraph (c) also allows miners
and their representatives to request our traditional approval if they choose. We
expect that in most cases miners and their representatives will bring any
concerns they may have about the training plan to your attention, and resolve it
in that manner. However, there may be a few instances where miners or their
representatives believe that direct involvement by us may be needed to resolve
issues or concerns, and the proposal would address those situations.
Paragraph (d) would require you to
furnish the miners' representative, if any, with a copy of the training plan no
later than two weeks before the plan is implemented or submitted to the Regional
Manager. At mines where no miners' representative has been designated, a copy of
the plan must either be posted at the mine or a copy provided to each miner at
least two weeks before the plan is implemented or submitted to the Regional
Manager for approval. This is intended to ensure that miners and their
representatives are notified of the contents of your training plan before it
goes into effect or is submitted to us for approval.
We recognize that at many mines, particularly
small operations, there may be no mine office and no appropriate place for
posting the plan. The proposal therefore would allow a copy of the plan to be
provided to each miner in lieu of posting. We are assuming that this requirement
would not place a large burden on you, because mines where posting would be
difficult or impractical would typically have a very small number of miners.
However, we are interested in whether this assumption is correct, and we are
also specifically interested in comments on whether this paragraph provides a
practical and workable approach to informing miners and their representatives of
training plan content.
Although not explicitly stated in the proposal itself, we intend that you
must provide miners or their representatives with copies of the training plan,
and with the opportunity to submit comments or request approval by us, whenever
major revisions are made to the plan. By "major revisions'' we mean
significant changes in course content or training methods, not minor alterations
such as the identity of instructors or the duration of courses in certain
subject areas. We request comment on whether the final rule should specifically
require
[[Page 18512]]
notification of miners of plan
revisions, and what type of revisions should require notification.
Under paragraph (e), miners and
their representatives have two weeks after the posting or receipt of the
training plan to submit comments on the plan to you, or to the Regional Manager
if the plan is before the Manager for approval. This is intended to provide
miners and their representatives with a means to provide input on the training
plan, either to you, if traditional approval is not being sought, or to the
Regional Manager who is reviewing and approving the plan.
Under paragraph (f), the Regional Manager must
notify you and miners, or their representative in writing of the approval, or
the status of the approval, of the training plan within 30 days after the date
on which the training plan was submitted to us for approval.
We are interested in comments on this process,
specifically on whether the proposal provides sufficient flexibility to you in
developing your plans, while at the same time ensuring that miners and their
representatives have been allowed meaningful participation in the process.
We considered adopting the
traditional approval procedures already contained in part 48. We have instead
proposed a more streamlined version of existing part 48 approval procedures.
This approach reflects our expectation that the parties will be able to reach a
satisfactory resolution of any concerns about the plan without the need for
specific procedures. As indicated earlier, we anticipate that most of you will
not seek our formal approval of your training plans, and that in most cases
concerns of miners or their representatives will be resolved informally. In
those limited cases where we become directly involved in plan approval, we
intend for the Regional Manager to provide reasonable notice to you and miners
or their representatives of the status of plan approval or perceived
deficiencies in the plan and also to provide parties with a reasonable
opportunity to express their views or offer solutions to the problem, without
the need for detailed procedures.
Nonetheless, we solicit comments on whether a detailed plan approval
process, such as in Sec. 48.23, should be adopted in the final rule, to apply to
those cases where traditional plan approval is sought.
Paragraph (g) provides you, miners, and miners'
representatives the right to appeal a Regional Manager's decision on a training
plan to the Director for Educational Policy and Development. Consistent with the
shifting of plan approval responsibility from Metal and Nonmetal Mine Safety and
Health to EFS, a Regional Manager's decision on a plan will be reviewed on
appeal by the Director for EPD.
Under this paragraph, an appeal must be submitted in writing within 30
days after notification of the Regional Manager's decision on the training plan.
The Director for EPD will issue a decision on the appeal within 30 days after
receipt of the appeal. We anticipate that this provision will be rarely used and
expect that when a disagreement arises between us, you, and miners and their
representatives about plan design or content, it can be resolved without the
need for intervention of the Director for EPD. However, in those rare cases
where the parties are unable to come to terms on the content of a particular
training plan, the proposed rule would provide parties the option of seeking
review from the Director for EPD. As indicated, parties have 30 days in which to
file a written appeal of the Regional Manager's decision on a plan, and the
Director for EPD has 30 days from the date of appeal to reach a decision.
Paragraph (h) would require you to
make available at the mine site a copy of the current training plan for
inspection by us and for examination by miners and their representatives. If the
training plan is not maintained at the mine site, you must have the capability
to provide the plan upon request to us, the miners, or their representatives.
Under this paragraph, you would have the flexibility to maintain your training
plan at a location other than the mine site, provided that you are able to
produce a copy of the plan upon request to our inspectors or miners and their
representatives. A number of speakers at the public meetings indicated that
there was no need for plans or other training records to be kept at the mine
site, given that modern communications technology, such as electronic mail and
fax machines, allow virtually instantaneous transmission of documents from one
location to another. The proposal does not specify a time within which a copy of
the plan must be produced after a request is made by us or miners; the
expectation is that if you choose to maintain the plan away from the mine site,
you should have the capability of producing the plan within a reasonable period
of time. If you do not have such capability, you must maintain the plan at the
mine site. We have taken this approach in the proposal for several reasons. It
has been our experience that we may complete an inspection at a surface mine in
less than one day. Although we wish to give you flexibility in recordkeeping, we
do not want this to result in an inspector having to delay his or her departure
from a mine site waiting for you to obtain a copy of the training plan.
Similarly, inspectors should not be put in the position of having to return to a
mine site the next day simply to inspect a copy of the training plan that was
unavailable during the course of the inspection the day before. Additionally,
miners and their representatives should not be required to wait to inspect the
training plan in effect at the mine. We are interested in comments on whether
this is the most practical approach. One possible alternative would be to
require the plan to be produced within a reasonable period of time after the
request is made, but in no case longer than one business day.
A number of commenters focused on the type of
assistance that we should provide to facilitate compliance with the final rule
after it is published. Assistance, particularly for small operators, in
developing training plans appropriate for their operations, was the subject of
much comment. Several commenters suggested that we or other organizations
implement a "cafeteria-type'' approach for plan development, where you
could choose among various training plan components to tailor a plan to your
particular operation. For example, the plan options from which you might choose
would include training components on subjects or curriculum that are suitable
for a small sand and gravel operation, or for a typical limestone mine, or a
shell dredging operation.
We
appreciate the commenters who are already giving thought to the types of
resources that would provide the greatest benefit to the mining community in
complying with the final training rule. We acknowledge that compliance
assistance for the mining community will be a key element in the successful
implementation of the final rule. We intend to provide extensive compliance
assistance to you, not only through our staff in Metal and Nonmetal Mine Safety
and Health, but also through our newly formed Educational Field Services
Division; we also expect state grantees to play a significant role in assisting
you in developing effective training plans and, at the same time, in satisfying
the requirements of the final rule.
To this end, we solicit comments on whether we should include examples of
model training plans, appropriate for different types and sizes of mining
operations, in a nonmandatory appendix to the final rule. We are also
considering including such model plans in a compliance guide that we will be
developing for the mining community
[[Page 18513]]
after
publication of the final rule. We anticipate that other organizations, including
state grantees and large operators, also may develop generic training plans and
make them available to small operators to assist in training plan development.
We are interested in commenters' suggestions for other types of compliance
assistance that would be useful to the mining community.
Section 46.4 Training Program Instruction
This section of the proposal--(1)
would require you to ensure that training given under this part is consistent
with the written training plan required under Sec. 46.3; (2) would require
training to be presented by a competent person; and (3) would allow you to
arrange for training to be provided by outside instructors. This section also
responds to comments, including the draft of the Coalition, that the rule should
allow the use of innovative training methods and should accept equivalent
training, provided to satisfy the requirements of the Occupational Safety and
Health Administration (OSHA) or other federal or state agencies, to satisfy part
46 requirements. Finally, this section would permit short safety and health
talks and other informal instruction to satisfy training requirements under this
part, in response to a number of comments.
Paragraph (a)(1) would clarify that training under part 46
must be conducted in accordance with your written training plan. This is
intended to ensure that the training given under this part is consistent with
the approach outlined in your plan, and is part of an organized scheme for
comprehensive miner training.
Paragraph (a)(2) provides that the training must be presented by a
competent person. "Competent person'' is defined in proposed Sec. 46.2 as a
person designated by you who has the ability, training, knowledge, or experience
to provide training to miners on a particular subject. Under this definition,
the competent person must also be able to evaluate the effectiveness of the
training.
We asked for
specific comments during the public meetings on whether the rule should
establish minimum qualifications for persons who conduct miner training, and if
so, what those qualifications should be. Many commenters offered their views on
this issue.
A number of commenters stated that the rule should impose no minimum
qualifications for trainers. Some indicated that many supervisors and other
employees at mining operations possess the experience and skills necessary to
train others effectively, and that you should have broad latitude to use on-site
trainers for some, or all, of your training needs. Other commenters believed
that it is impossible to regulate the quality of instruction with minimum
criteria such as academic training, mining experience, years of training
experience, etc., and that an instructor certification program would not
guarantee the quality of instruction. One commenter was concerned that
restricting all training to a limited pool of certified instructors would
deprive you of the flexibility needed to develop training plans responsive to
the unique circumstances of each mining operation. Another commenter stated that
if training instructors are required to be certified and to complete some type
of formal training, you could have great difficulty in finding people who can
actually deliver training in the necessary subject areas.
On the other hand, several commenters recommended
that the approach taken in part 48, which requires our approval of instructors,
be used as a guideline for addressing instructor qualifications under part 46.
Under part 48, instructors may be approved in several ways. For example,
instructors may take an instructor training course and complete a program of
instruction approved by us in the subject to be taught; instructors may also
obtain approval to provide training based on written evidence of their
qualifications and teaching experience.
In contrast, several commenters stated that the instructor
approval process under part 48 has had inconsistent results, at best. Another
commenter suggested that instructors should be certified by a recognized
professional organization in health and safety. Still others recommended that if
we do not require instructors to be approved, the rule should require
prospective trainers to go through a training course so that they will know how
to present training materials correctly and effectively. Several commenters
believed that instructors should also be able to evaluate the effectiveness of
the training they are giving.
The proposal adopts the recommendations of many commenters that the rule
not require a formal program for the approval or certification of instructors,
or establish rigid minimum qualifications for instructors. We are persuaded at
this stage that a formal instructor approval program would provide no real
guarantee that training will be effective, and that the benefits realized from a
formal program would not justify the additional administrative burden. We are
also persuaded by commenters who stated that there are many experienced and
knowledgeable people currently working in the industry who can provide effective
training in a wide variety of subject areas.
Contrary to the recommendations of several commenters, we
have not included a proposed requirement that trainers receive instruction in
how to provide training before they serve as instructors. Instead, we would
expect you to assess how well a person can communicate in determining whether he
or she is capable of providing training for your miners. A person with extensive
knowledge in a particular subject area may not be a good choice as an instructor
if he or she is unable to convey the information to miners clearly and
effectively.
The proposal
would require that training be conducted by a "competent person''
designated by you. The proposal would not establish minimum academic or
professional qualifications for these persons. Instead, these persons would be
required to have sufficient ability, knowledge, training, or experience to
enable them to provide training to miners. They must also be able to evaluate in
some fashion whether the training has been effective. The proposal does not
specify how such an evaluation must be conducted, and we anticipate that the
method of evaluation will depend to a large extent on the type of training being
given. For example, a written test might be appropriate in a traditional
classroom setting, while a miner receiving new task training may be asked to
demonstrate to the trainer that he or she can perform the task safely. The
proposed rule would allow a significant amount of discretion in this
determination. In addition, we will be available to provide assistance to you in
determining the appropriate training for your operation.
We are interested in comments on the approach
taken in the proposal for training instructors, particularly on our preliminary
decision on the merits of a formal instructor approval or certification program.
For example, one commenter recommended that we should focus our attention on the
evaluation of instructors who have not taken a course on presentation skills,
also known as "train-the-trainer'' courses. We are also interested in
commenters'' views on whether the final rule should require some minimum amount
of formal training for instructors, designed to ensure that the instructor has
the communication skills needed to provide effective training.
[[Page 18514]]
Paragraph (b) provides that you may conduct your own
training or may arrange for training to be conducted by federal or state
agencies; associations of operators; miners' representatives; other operators;
contractors, consultants, or manufacturers' representatives; private
associations; educational institutions; or other competent training providers.
This provision is similar to language in Sec. 48.24 and in the Coalition draft
proposal and would make clear that you may choose from a variety of training
providers in satisfying your training responsibilities under part 46. We
recognize that a wide variety of effective miner training is available from many
types of organizations across the country. Under the proposal, you would be free
to arrange with outside training providers in satisfying your training
obligations. We expect that many small operators and independent contractors,
who may not have the resources for a formal in-house training program, will
elect to arrange with outside organizations to provide some part of their
training.
Paragraph (c) would
allow the acceptance of training required by OSHA or other federal and state
agencies to satisfy the training requirements under part 46. Under the proposal,
this training must be equivalent to what would be provided under part 46--that
is, it must be safety and health training that is relevant to the mining
environment.
Acceptance of
OSHA training was raised by a number of speakers at the public meetings. Several
speakers indicated that many operations regulated by us, such as sand and gravel
or crushed stone sites, are also associated with an OSHA-regulated facility,
such as a construction site. Employees may be shared across several operations
under the same management. One speaker pointed out that in many cases the
equipment at these operations is interchangeable, the tasks are interchangeable,
and the workers are interchangeable. These employees may perform the same duties
at both sites and have been trained to work around the same types of hazards.
These speakers strongly urged us to accept the safety and health training
provided to comply with OSHA regulations to satisfy training requirements under
part 46. Several commenters also recommended that we accept training that is
provided to satisfy the