99-25273. Training and Retraining of Miners Engaged in Shell Dredging or Employed at Sand, Gravel, Surface Stone, Surface Clay, Colloidal Phosphate, or Surface Limestone Mines  

  • [Federal Register Volume 64, Number 189 (Thursday, September 30, 1999)]
    [Rules and Regulations]
    [Pages 53080-53134]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 99-25273]
    
    
    
    [[Page 53079]]
    
    _______________________________________________________________________
    
    Part III
    
    
    
    
    
    Department of Labor
    
    
    
    
    
    _______________________________________________________________________
    
    
    
    Mine Safety and Health Administration
    
    
    
    _______________________________________________________________________
    
    
    
    30 CFR Parts 46 and 48
    
    
    
    Training and Retraining of Miners Engaged in Shell Dredging or Employed 
    at Sand, Gravel, Surface Stone, Surface Clay, Colloidal Phosphate, or 
    Surface Limestone Mines; Final Rule
    
    Federal Register / Vol. 64, No. 189 / Thursday, September 30, 1999 / 
    Rules and Regulations
    
    [[Page 53080]]
    
    
    
    DEPARTMENT OF LABOR
    
    Mine Safety and Health Administration
    
    30 CFR Parts 46 and 48
    
    RIN 1219-AB17
    
    
    Training and Retraining of Miners Engaged in Shell Dredging or 
    Employed at Sand, Gravel, Surface Stone, Surface Clay, Colloidal 
    Phosphate, or Surface Limestone Mines
    
    AGENCY: Mine Safety and Health Administration (MSHA), Labor.
    
    ACTION: Final rule.
    
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    SUMMARY: This final rule amends MSHA's existing health and safety 
    training regulations by establishing new training requirements for 
    shell dredging, sand, gravel, surface stone, surface clay, colloidal 
    phosphate, and surface limestone mines. Congress has prohibited MSHA 
    from expending funds to enforce training requirements at these mines 
    since fiscal year 1980. This final rule implements the training 
    requirements of section 115 of the Federal Mine Safety and Health Act 
    of 1977 and provides for effective miner training at the affected 
    mines. At the same time, the final rule allows mine operators the 
    flexibility to tailor their training programs to the specific needs of 
    their miners and operations.
    
    EFFECTIVE DATE: This regulation is effective October 2, 2000.
    
    FOR FURTHER INFORMATION CONTACT: Carol J. Jones, Acting Director, 
    Office of Standards, Regulations, and Variances, MSHA; 4015 Wilson 
    Boulevard, Room 631, Arlington, VA 22203; Ms. Jones may be reached at 
    cjones@msha.gov (Internet E-mail); 703-235-1910 (voice); or 703-235-
    5551 (facsimile).
    
    SUPPLEMENTARY INFORMATION:
    
    I. Plain Language
    
        We (MSHA) wrote this final rule in the more personal style 
    advocated by the President's executive order on ``plain language.'' 
    ``Plain language'' encourages the use of--
         personal pronouns (we and you);
         sentences in the active voice;
         a greater use of headings, lists, and questions, as well 
    as charts, figures, and tables.
        In this final rule, ``you'' refers to production-operators and 
    independent contractors because they have the primary responsibility 
    for compliance with MSHA regulations. We received several comments on 
    the use of plain language. Commenters generally supported the use of 
    plain language, but suggested that using ``you'' to refer to two 
    entities was somewhat confusing. In response, the Agency uses the terms 
    ``production-operators'' and ``independent contractors'' where the use 
    of the term ``you'' could be confusing.
    
    II. Paperwork Reduction Act of 1995
    
        The information collection requirements contained in this final 
    rule have been submitted to the Office of Management and Budget (OMB) 
    for review under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
    3520), as implemented by OMB in regulations at 5 CFR Part 1320. The 
    Paperwork Reduction Act of 1995 (PRA 95) defines collection of 
    information as ``the obtaining, causing to be obtained, soliciting, or 
    requiring the disclosure to third parties or the public of facts or 
    opinions by or for an agency regardless of form or format'' (44 U.S.C. 
    3502(3)(A)). Under PRA 95, no person may be required to respond to, or 
    may be subjected to a penalty for failure to comply with, these 
    information collection requirements until they have been approved and 
    MSHA has announced the assigned OMB control number. The OMB control 
    number, when assigned, will be announced by separate notice in the 
    Federal Register. In accordance with Sec. 1320.11(h) of the 
    implementing regulations, OMB has 60 days from today's publication date 
    in which to approve, disapprove, or instruct MSHA to make a change to 
    the information collection requirements in this final rule.
        Recordkeeping requirements in the final rule are found in 
    Secs. 46.3, 46.5, 46.6, 46.7, 46.8, 46.9, and 46.11. MSHA did not 
    receive any comments on the methodology or assumptions used. Comments 
    received on specific provisions of the proposed rule are addressed in 
    the section-by-section discussion of Sec. 46.9 ``Records of Training.'' 
    The final rule provides that records are not required to be maintained 
    at the mine site, and therefore can be electronically filed in a 
    central location, so long as the records are made available upon 
    request to the authorized representative of the Secretary and to miners 
    or their representatives.
        Although the final rule does not require backing up the data, some 
    means are necessary to ensure that electronically stored information is 
    not compromised or lost. MSHA encourages mine operators who store 
    records electronically to provide a mechanism that will allow the 
    continued storage and retrieval of records in the year 2000. Table 1 
    provides, by section, the paperwork requirements for Year 1 and then 
    for every other succeeding year. Table 2 provides, by section, the 
    annual paperwork requirements starting with the first year. Table 3 
    provides, by section, the paperwork requirements for Year 1 and then 
    for every other succeeding year for miners and their representatives. 
    Table 4 provides, by section, the annual paperwork requirements for 
    miners and their representatives. Mine operators will incur a total of 
    233,594 burden hours at a cost of about $7.6 million in the first year, 
    and in every other succeeding year (i.e., 3, 5, 7, 9). Mine operators 
    will incur 220,776 burden hours at a cost of $7.1 million in years 2, 
    4, 6, 8, etc. The first year burden hours and costs are composed by 
    summing the figures in Tables 1, 2, 3, and 4.
    
    BILLING CODE 4510-43-P
    
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    [GRAPHIC] [TIFF OMITTED] TR30SE99.030
    
    
    
    BILLING CODE 4510-43-C
    
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    III. Executive Order 12866 and Regulatory Flexibility Analysis
    
        Executive Order (E.O.) 12866 requires that regulatory agencies 
    assess both the costs and benefits of intended regulations. Based upon 
    the economic analysis, we have determined that this final rule is not 
    an economically significant regulatory action pursuant to section 
    3(f)(1) of E.O. 12866. MSHA does consider the final rule to be 
    significant under section 3(f)(4) of the E.O. because of widespread 
    interest in the rule, and has submitted the final rule to OMB for 
    review.
        The Regulatory Flexibility Act (RFA) requires regulatory agencies 
    to consider a rule's impact on small entities. Under the RFA, MSHA must 
    use the Small Business Administration's (SBA's) definition for a small 
    mine of 500 or fewer employees or, after consultation with the SBA 
    Office of Advocacy, establish an alternative definition for the mining 
    industry by publishing that definition in the Federal Register for 
    notice and comment. In this rule, none of the affected mines have 500 
    or more employees. Therefore for the purposes of the RFA, all of the 
    affected mines are considered small. MSHA has analyzed the impact of 
    the final rule on mines with 20 or more employees, mines with 6-19 
    employees, and mines with 1-5 employees. MSHA has determined that this 
    rule will not impose a significant cost increase on a substantial 
    number of small mines.
        MSHA has prepared a Regulatory Economic Analysis (REA) and 
    Regulatory Flexibility Certification Statement to fulfill the 
    requirements of E.O. 12866 and the Regulatory Flexibility Act. This REA 
    is available from MSHA upon request and is posted on our Internet Home 
    Page at www.msha.gov.
    
    Regulatory Flexibility Certification Statement
    
        Based on MSHA's analysis of costs and benefits, the Agency 
    certifies that this rule will not impose a significant economic impact 
    on a substantial number of small entities.
    
    Factual Basis for Certification
    
        General approach: The Agency's analysis of impacts on ``small 
    entities'' begins with a ``screening'' analysis. The screening compares 
    the estimated compliance costs of the rule for small mine operators in 
    the affected sector to the estimated revenues for that sector. When 
    estimated compliance costs are less than 1 percent of estimated 
    revenues (for the size categories considered) the Agency believes it is 
    generally appropriate to conclude that there is no significant impact 
    on a substantial number of small entities. When estimated compliance 
    costs approach or exceed 1 percent of revenue, it tends to indicate 
    that further analysis may be warranted.
        Derivation of costs and revenues: In the case of this rule, because 
    the compliance costs must be absorbed by the nonmetal mines affected by 
    this rule, the Agency decided to focus its attention exclusively on the 
    relationship between costs and revenues for these mines, rather than 
    looking at the entire metal and nonmetal mining sector as a whole.
        In deriving compliance costs there were areas where different 
    assumptions had to be made for small mines in different employment 
    sizes in order to account for the fact that the mining operations of 
    small mines are not the same as those of large mines. For example, 
    different assumptions for mine size categories were used to derive 
    compliance costs concerning: the number of persons trained per mine and 
    the number of training sessions a mine would have annually. In 
    determining revenues for the nonmetal mines affected by this 
    rulemaking, MSHA multiplied the production data (in tons) by the price 
    per ton of the commodity.
        Results of screening analysis. As shown in Table V-1 from the REA, 
    with respect to the nonmetal mines covered by this rule that have 1 to 
    5 workers, the estimated annual costs of the rule as a percentage of 
    their annual revenues are 0.32 percent. For nonmetal mines covered by 
    this rule that have between 6 and 19 workers, the estimated annual 
    costs of the rule as a percentage of their annual revenues are 0.14 
    percent. For nonmetal mines covered by this rule that have 20 or more 
    workers, the estimated annual costs of the rule as a percentage of 
    their annual revenues are 0.04 percent. Finally, for all nonmetal mines 
    covered by this rule (all of which have 500 or fewer workers) the 
    estimated annual costs of the rule as a percentage of their annual 
    revenues are 0.10 percent.
        In every case, the estimated compliance costs are substantially 
    less than 1 percent of revenues, well below the level suggesting that 
    the rule might have a significant impact on a substantial number of 
    small entities. Accordingly, MSHA has certified that there is no such 
    impact for small entities that mine the commodities that are affected 
    by this rule.
        As required under the law, MSHA has complied with its obligation to 
    consult with the Chief Counsel for Advocacy at the Small Business 
    Administration on this rule, and on the Agency's certification of no 
    significant economic impact on the mines affected by this rule.
    
                              Table V-1.--Exempt Nonmetal Mines Covered by the Final Rule a
                                                 [dollars in thousands]
    ----------------------------------------------------------------------------------------------------------------
                                                                                                         Costs as
                             Employment size                             Estimated       Estimated     percentage of
                                                                           costs        revenues b       revenues
    ----------------------------------------------------------------------------------------------------------------
    1-5.............................................................           6,197       1,950,102            0.32
    6-19............................................................           6,384       4,556,847            0.14
    20 or more......................................................           3,975       9,756,081            0.04
    All Mines c.....................................................          16,556      16,263,030            0.10
    ----------------------------------------------------------------------------------------------------------------
    a All mines covered by the final rule are surface mines.
    b Data for revenues derived from U.S. Department of the Interior/U.S. Geological Survey. Mining and Quarrying
      Trends, 1997 Annual Review. 1997. Tables 2 and 3. Revenues for the three U.S. colloidal phosphate mines
      estimated using average revenues of the other exempt mines in the same size categories covered by the final
      rule.
    c Every mine affected by the rule has 500 or fewer employees.
    
        As required under the law, MSHA complied with its obligation to 
    consult with the Chief Counsel for Advocacy on this rule, and on the 
    Agency's certification of no significant economic impact on the mines 
    affected by this rule.
    
    [[Page 53083]]
    
    Compliance Costs
    
        MSHA estimates that the total net cost of the final 30 CFR part 46 
    training requirements will be approximately $17.94 million annually, of 
    which about $16.55 million will be borne by mine operations in the 
    following surface nonmetal mining sectors: shell dredging, sand, 
    gravel, stone, clay, colloidal phosphate, and limestone.1 
    Since fiscal year 1980, Congress has prohibited MSHA from enforcing 
    existing MSHA health and safety training regulations in 30 CFR part 48 
    at mines (``exempt mines'') in these sectors of the surface nonmetal 
    mining industry. The exempt mines that are not currently in compliance 
    with the existing part 48 training requirements will incur costs of 
    approximately $17.43 million annually to comply with the final rule, 
    while those currently in compliance with the existing part 48 training 
    requirements will derive net savings of approximately $0.89 million 
    annually.
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        \1\ The remaining $1.39 million in costs associated with the 
    final rule will be borne primarily by non-miners who receive hazard 
    awareness training, or by their empolyers.
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        Over the past 20 years, MSHA has consistently categorized a mine as 
    being small if it employs fewer than 20 workers and as being large if 
    it employs 20 or more workers. For the purposes of this Regulatory 
    Economic Analysis (REA), however, MSHA has identified three mine size 
    categories based on the number of employees, which are relevant to the 
    estimation of the cost of the final rule: (1) Mines employing 5 or 
    fewer workers; (2) mines employing between 6 and 19 workers; and (3) 
    mines employing 20 or more workers. These mine categories are important 
    because they are believed to have significantly different compliance 
    rates for existing part 48 training requirements. For this final rule, 
    MSHA estimates that the following percentages of exempt mines by size 
    category are currently not in compliance with existing part 48 
    requirements: 60 percent of mines with 5 or fewer employees; 40 percent 
    of mines with between 6 and 19 employees; and 20 percent of mines with 
    20 or more employees.
        In 1997, there were 10,152 exempt mines covered by the final rule. 
    MSHA estimates that the average cost per exempt mine to comply with the 
    final rule will be approximately $1,600 annually. For the 5,297 exempt 
    mines with 5 or fewer employees, MSHA estimates that the average cost 
    of the final rule per mine will be approximately $1,200 annually. For 
    the 3,498 exempt mines with between 6 and 19 employees, MSHA estimates 
    that the average cost of the final rule per mine will be approximately 
    $1,800 annually. For the 1,357 exempt mines with 20 or more employees, 
    MSHA estimates that the average cost of the final rule per mine will be 
    approximately $2,900 annually.
        These costs per mine may be slightly misleading insofar as the 
    exempt mines currently in compliance with existing part 48 training 
    requirements will also be, for the most part, in compliance with the 
    final rule and will therefore incur only relatively modest compliance 
    costs. In fact, as previously stated, these mines would derive net 
    savings of approximately $0.89 million annually as a result of the 
    final rule.2 For the exempt mine operators (including 
    independent contractors that employ miners) not currently in compliance 
    with existing part 48 training requirements, the annual cost of 
    complying with the final rule will, on average, be approximately $1,900 
    per mine operator with 5 or fewer workers; $4,500 per mine operator 
    with between 6 and 19 workers; and $15,800 per mine operator with 20 or 
    more workers.
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        \2\ The net savings consist of $1.18 million in compliance costs 
    and $2.07 million in savings. The $2.07 million in savings arise 
    from paragraph (e) of $46.4, which allows all documented employee 
    safety meetings, regardless of duration, to be credited toward 
    training requirements. (Under the existing part 48 training 
    requirements, employee safety meetings lasting less than 30 minutes 
    may not be credited toward training requirements.) For details about 
    these savings, see Table IV-32 and the text that precedes it.
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        Table IV-1 from the REA summarizes MSHA's estimate of the yearly 
    costs of the final rule by mine size and by provision. These costs 
    reflect first year costs of $18,140,889 and second year costs of 
    $17,694,277.
    
                                              Table IV-1.--Summary of Yearly Compliance Costs for the Final Rule *
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Mines with 1-5   Mines with 6-    Mines  with   Total cost for  Total cost for
                      Requirement provision                      employees     19 employees   20+  employees     all mines     other parties    Total cost
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Sec.  46,3..............................................        $158,780         $71,467         $28,827        $259,074          $7,628        $266,702
    Sec.  46.5..............................................       2,436,253       1,953,064         774,018       5,163,335  ..............       5,163,335
    Sec.  46.6..............................................         426,676         313,628         113,382         853,686  ..............         853,686
    Sec.  46.7..............................................         351,365         828,761       1,183,662       2,363,787  ..............       2,363,787
    Sec.  46.8..............................................       2,139,686       2,540,586       1,527,819       6,208,091  ..............       6,208,091
    Sec.  46.9..............................................          45,449          92,781          88,338         226,568  ..............         226,568
    Sec.  46.11.............................................         581,912         509,544         200,597       1,292,053       1,292,053       2,584,105
    Sec.  46.12.............................................          56,860          74,440          57,896         189,196          85,744         274,940
                                                             -----------------------------------------------------------------------------------------------
        Total...............................................       6,196,980       6,384,271       3,974,539      16,555,790       1,385,425      17,941,215
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    * Source: Table IV-20, Table IV-25, Table IV-27, Table IV-30, Table IV-33, Table IV-35, Table IV-36 and Table IV-37.
    
    Benefits
    
        Safety and health professionals from all sectors of industry 
    recognize that training is a critical element of an effective safety 
    and health program. Training informs miners of safety and health 
    hazards inherent in the workplace and enables them to identify and 
    avoid such hazards. Training becomes even more important in light of 
    certain conditions that can exist when production demands increase, 
    such as: an influx of new and less experienced miners and mine 
    operators; longer work hours to meet production demands; and increased 
    demand for contractors who may be less familiar with the dangers on 
    mine property.
        Although there may be some differences in production technology and 
    the production environment between the exempt mining industry and other 
    surface nonexempt mining industries, the data presented in Chapter III 
    of this document indicate that the lack of training in exempt mines 
    contributes significantly to the disproportionate number of fatalities
    
    [[Page 53084]]
    
    that occur at such mines. Chapter III points out that in the period 
    from 1993 to 1997, there were 200 fatalities at surface mines. Of 
    these, 163 occurred at exempt mines. Thus, exempt mines accounted for 
    82 percent of all fatalities at surface mines during this period. 
    During the same period, however, employees at exempt mines accounted 
    for only 64 percent of the total number of hours worked at surface 
    mines.
        One of the major reasons that exempt mines have experienced a 
    higher fatality rate than the surface mining industry as a whole is 
    that smaller operations, those which employ fewer than 20 workers, make 
    up the vast majority of exempt mines. These small operations, as a 
    group, have the highest rates of noncompliance with part 48 training 
    requirements and also the highest fatality rates.
        It is plausible to assert that at least some of these fatalities 
    might have been prevented if victims had received appropriate miner 
    safety training. Similarly, MSHA believes that compliance with the 
    requirements of this final training rule will, in turn, reduce the 
    number of fatalities at formerly exempt mines. As discussed in greater 
    detail in Chapter III of this document, MSHA estimates that compliance 
    with the final rule will prevent about 10 fatalities and 557 injuries 
    per year. MSHA believes that this final rule will make training more 
    responsive to the needs of the industry and more effective for 
    individual miners, thereby raising the compliance rate and reducing 
    mine injuries and fatalities.
    
    IV. Unfunded Mandates Reform Act of 1995
    
        We have determined that, for purposes of section 202 of the 
    Unfunded Mandates Reform Act of 1995, this rule does not include any 
    federal mandate that may result in increased expenditures by State, 
    local, or tribal governments in the aggregate of more than $100 
    million, or increased expenditures by the private sector of more than 
    $100 million. Moreover, the Agency has determined that for purposes of 
    Sec. 203 of that Act, this rule does not significantly or uniquely 
    affect these entities.
    
    Background
    
        The Unfunded Mandates Reform Act was enacted in 1995. While much of 
    the Act is designed to assist the Congress in determining whether its 
    actions will impose costly new mandates on State, local, and tribal 
    governments, the Act also includes requirements to assist federal 
    agencies to make this same determination with respect to regulatory 
    actions.
    
    Analysis
    
        Based on the analysis in the Agency's REA, the yearly compliance 
    costs (annualized costs plus annual costs) resulting from the final 
    rule will be approximately $17.9 million, of which about $16.6 million 
    will be borne by the affected nonmetal operators. Accordingly, there is 
    no need for further analysis under Sec. 202 of the Unfunded Mandates 
    Reform Act.
        MSHA has concluded that small governmental entities would not be 
    significantly or uniquely impacted by the regulation. The final rule 
    will affect 10,152 surface nonmetal mining operations. MSHA data 
    indicate that there are 185 nonmetal mines affected by this rule that 
    are state or local government owned.
        When MSHA issued the proposed rule, the Agency affirmatively sought 
    input of any state, local, and tribal government which may be affected 
    by the training rulemaking. This included state and local governmental 
    entities who operate sand and gravel mines in the construction and 
    repair of highways and roads. MSHA mailed a copy of the proposed rule 
    to these entities. The Agency received comments from several state 
    agencies and local government entities. No tribal government entity 
    commented on the proposed rule. A speaker at the Pittsburgh public 
    hearing on the proposed rule asserted that (in New York State, at 
    least) there were many mines operated by local governments not counted 
    or inspected by MSHA and not in compliance with existing part 48 
    training requirements. Even if this assertion were true, MSHA's 
    analysis of regulatory impacts indicates that the cost of the final 
    rule will range from only $1,900 per mine to $15,800 per mine not 
    currently in compliance with existing part 48 training requirements. 
    MSHA believes that these costs do not significantly or uniquely impact 
    these small government entities. MSHA will mail a copy of the final 
    rule to approximately 185 such entities.
        We have determined that, for purposes of Sec. 202 of the Unfunded 
    Mandates Reform Act of 1995, this rule does not include any federal 
    mandate that may result in increased expenditures by State, local, or 
    tribal governments in the aggregate of more than $100 million, or 
    increased expenditures by the private sector of more than $100 million. 
    Moreover, the Agency has determined that for purposes of Sec. 203 of 
    that Act, this rule does not significantly or uniquely affect these 
    entities.
    
    V. Executive Order 13045: Protection of Children From Environmental 
    Health Risks and Safety Risks
    
        In accordance with E.O. 13045, MSHA has evaluated the environmental 
    health and safety effects of the final rule on children. MSHA has 
    determined that the final rule will have no effect on children.
    
    VI. Executive Order 13084: Consultation and Coordination With 
    Indian Tribal Governments
    
        MSHA certifies that the final rule will not impose substantial 
    direct compliance costs on Indian tribal governments.
    
    VII. Executive Order 12612: Federalism
    
        Executive Order 12612, regarding federalism, requires that 
    agencies, to the extent possible, refrain from limiting state policy 
    options, consult with states prior to taking any actions which would 
    restrict state policy options, and take such actions only when there is 
    clear constitutional authority and the presence of a problem of 
    national scope. Because this final rule does not limit state policy 
    options, it complies with the principles of federalism and with 
    Executive Order 12612.
    
    VIII. Executive Order 12630: Government Actions and Interference 
    With Constitutionally Protected Property Rights
    
        This final rule is not subject to Executive Order 12630, 
    Governmental Actions and Interference with Constitutionally Protected 
    Property Rights, because it does not involve implementation of a policy 
    with takings implications.
    
    IX. Executive Order 12875: Enhancing the Intergovernmental 
    Partnership
    
        Executive Order (E.O.) 12875 requires executive agencies and 
    departments to reduce unfunded mandates on State, local, and tribal 
    governments; to consult with these governments prior to promulgation of 
    any unfunded mandate; and to develop a process that permits meaningful 
    and timely input by State, local, and tribal governments in the 
    development of regulatory proposals containing a significant unfunded 
    mandate. E.O. 12875 also requires executive agencies and departments to 
    increase flexibility for State, local, and tribal governments to obtain 
    a waiver from Federal statutory or regulatory requirements.
        MSHA estimates that there are 185 sand and gravel, surface 
    limestone, and stone operations that are run by State, local, or tribal 
    governments for the construction and repair of highways and
    
    [[Page 53085]]
    
    roads. When MSHA issued the proposed rule, the Agency affirmatively 
    sought input of any state, local, and tribal government which may be 
    affected by the training rulemaking. This included state and local 
    governmental entities who operate sand and gravel mines in the 
    construction and repair of highways and roads. MSHA mailed a copy of 
    the proposed rule to these entities. The Agency received comments from 
    several state agencies and local government entities. No tribal 
    government entity commented on the proposed rule.
    
    X. Executive Order 12988: Civil Justice Reform
    
        The Agency has reviewed Executive Order 12988, Civil Justice 
    Reform, and determined that this rulemaking will not unduly burden the 
    Federal court system. The regulation has been written so as to provide 
    a clear legal standard for affected conduct, and has been reviewed 
    carefully to eliminate drafting errors and ambiguities.
    
    XI. Statutory and Rulemaking Background
    
        Section 115 of the Federal Mine Safety and Health Act of 1977 (Mine 
    Act), 30 U.S.C. 801 et seq., directed the Secretary of Labor to 
    promulgate regulations requiring that mine operators subject to the 
    Mine Act establish health and safety training programs for their 
    miners. MSHA issued final miner training regulations in 30 CFR part 48 
    on October 13, 1978 (43 FR 47453). At that time, some industry 
    representatives expressed concern over the appropriateness of applying 
    the requirements of part 48 to smaller, less technical surface nonmetal 
    mining operations. They also maintained that many small nonmetal 
    operators would have difficulties in complying with part 48.
        In 1979, various segments of the metal and nonmetal mining industry 
    raised these concerns with Congress and requested relief from the 
    comprehensive specifications of part 48. In response, Congress inserted 
    language in the Department of Labor's appropriations bill that 
    prohibited the expenditure of appropriated funds to enforce miner 
    health and safety training requirements at approximately 10,200 surface 
    nonmetal work sites. Congress has inserted this language into each 
    Department of Labor appropriations bill since fiscal year 1980. This 
    language specifically prohibits the use of appropriated funds to:
    
         * * * carry out Sec. 115 of the Federal Mine Safety and Health 
    Act of 1977 or to carry out that portion of Sec. 104(g)(1) of such 
    Act relating to the enforcement of any training requirements, with 
    respect to shell dredging, or with respect to any sand, gravel, 
    surface stone, surface clay, colloidal phosphate, or surface 
    limestone mine.
    
        This language remains in place under MSHA's appropriations 
    contained in the Omnibus Appropriations Act for 1999, Pub. L. 105-277, 
    signed by the President on October 21, 1998. The congressional 
    appropriations rider for fiscal year 1999, however, authorized us to 
    expend funds to propose and promulgate final training regulations by 
    September 30, 1999, for operations affected by the prohibition 
    (``exempt mines''). The 1999 rider also directed us to work with the 
    affected industry representatives, mine operators, workers, labor 
    organizations, and other interested parties to promulgate the training 
    regulations and to base the regulations on a draft submitted to MSHA no 
    later than February 1, 1999, by the Coalition for Effective Miner 
    Training (Coalition).
        The Coalition is comprised of producers, associations that 
    represent producers, and three labor organizations. Coalition members 
    are:
    
    American Portland Cement Alliance
    Arizona Rock Products Association
    Construction Materials Association of California
    China Clay Producers Association
    Dry Branch Kaolin Company
    Georgia Crushed Stone Association
    Georgia Mining Association
    Indiana Mineral Aggregates Association
    International Brotherhood of Teamsters
    International Brotherhood of Boilermakers, Iron Shipbuilders, 
    Blacksmiths, Forgers, and Helpers
    Laborers-AGC Education and Training Fund
    National Aggregates Association
    National Industrial Sand Association
    National Lime Association
    National Stone Association
    North Carolina Aggregates Association
    Sorptive Minerals Institute
    United Metro Materials, Inc.
    Virginia Aggregates Association
    
        On November 3, 1998, we published a Federal Register notice (63 FR 
    59258) announcing seven preproposal public meetings. These meetings 
    were held in California, Colorado, Georgia, Illinois, New York, Oregon, 
    and Texas in December 1998 and January 1999 to receive comments from 
    the public on development of the training rule for miners at exempt 
    mines. We selected the meeting locations to provide as many miners, 
    miners' representatives, and mine operators, both large and small, with 
    the opportunity to attend at least one of the meetings and present 
    their views. More than 220 individuals, including representatives from 
    the Coalition, labor, contractors, mining associations, State agencies, 
    small and large operators, and trainers, attended the meetings. Many 
    attendees made oral presentations of their views on effective miner 
    health and safety training. We also received a number of written 
    comments on pertinent training issues.
        The Coalition presented us with a final joint industry/labor draft 
    proposed rule on February 1, 1999, the congressionally established 
    deadline. We considered this draft, along with written comments and 
    oral testimony received during the preproposal period, in developing a 
    proposed rule, which we published in the Federal Register on April 14, 
    1999 (64 FR 18498). The notice of proposed rulemaking also included 
    language that would amend existing part 48 to specify that mines 
    covered under part 46 are not subject to part 48 training requirements.
        The notice of public hearings on the proposed rule appeared in the 
    Federal Register on the same day as the proposal (64 FR 18528). In May 
    1999, we held four public hearings in Florida, California, 
    Pennsylvania, and Washington, D.C., to receive public comment on the 
    proposal. The rulemaking record closed on June 16, 1999. The agency 
    received many comments concerning training and retraining of miners. We 
    held 7 informational meetings around the country to seek input from the 
    mining community. In response, we received a total of 30 written and 
    electronic comments. In addition, 67 speakers provided oral comments. 
    After publication of the proposed rule, we received 136 written and 
    electronic comments, and 15 speakers provided oral comments. We 
    received comments from various entities including mine operators, 
    organized labor groups, such as United Steelworkers of America, United 
    Mine Workers of America, International Union of Operating Engineers, 
    State agencies and local municipalities, colleges and universities, and 
    the Coalition.
    
    XII. General Discussion
    
        Crushed stone and sand and gravel account for the majority of 
    operations where we have been prohibited from enforcing training 
    requirements. The United States Geological Survey, United States 
    Department of the Interior (USGS), derives domestic production data for 
    crushed stone and sand and gravel from voluntary surveys of U.S. 
    producers. USGS makes these data available in quarterly Mineral 
    Industry Surveys and in annual Mineral Commodities Summaries. Annual 
    crushed stone tonnage ranks first in the nonfuel minerals industry, 
    with annual sand and gravel tonnage ranking second. USGS data show that 
    domestic
    
    [[Page 53086]]
    
    production of sand and gravel and crushed stone increased every year 
    between 1991 and 1999, an indication of the continuing strong demand 
    for construction aggregates in the United States. The most recent USGS 
    data show that sand and gravel production increased approximately 14 
    percent and crushed stone production increased approximately 7 percent 
    in the first three months of 1999, as compared to the first three 
    months of 1998.
        The number of hours worked at sand and gravel and crushed stone 
    operations has been increasing steadily since 1991. In 1991, the hours 
    worked at crushed stone operations totaled approximately 104 million 
    employee-hours, rising to 121 million employee-hours in 1998. 
    Similarly, the number of employee-hours at sand and gravel operations 
    rose from approximately 65 million in 1991 to 75 million in 1998. Based 
    on hours reported for the first three months of 1999, the total hours 
    worked for 1999 will exceed the total hours worked in 1998. Although 
    some of the increase in hours worked may be attributable to longer 
    workdays, the data show that the aggregates industry workforce is 
    growing.
        Crushed stone and sand and gravel are essential and used widely in 
    all major construction activities, including highway, road, and bridge 
    construction and repair projects, as well as residential and 
    nonresidential construction. Although crushed stone is used mostly by 
    the construction industry, it is also used as a basic raw material in 
    agricultural and chemical and metallurgical processes. The construction 
    industry is by far the largest consumer of sand and gravel. 
    Consequently, the level of construction activity largely determines the 
    demand for, and resulting production levels of, these aggregate 
    materials.
        In 1998, President Clinton signed the Transportation Equity Act for 
    the 21st Century, commonly known as ``TEA-21'' (Pub. L. 105-178), which 
    authorizes highway, highway safety, transit, and other surface 
    transportation programs for the fiscal years 1998 to 2003. The demand 
    for materials produced by the surface nonmetal mining industry is 
    anticipated to increase substantially due to, in significant part, 
    transportation infrastructure construction resulting from the enactment 
    of TEA-21. As the largest public works legislation in the nation's 
    history, appropriating almost $218 billion for highway and transit 
    programs, TEA-21 provides a 40 percent funding increase over the levels 
    for such programs established by the Intermodal Surface Transportation 
    Efficiency Act of 1991, which was the last major authorizing 
    legislation for surface transportation.
        In addition to the passage of TEA-21, other factors may also 
    contribute to the continued growth in construction activity and, thus, 
    the demand for aggregate materials. These include a healthy U.S. 
    economy in general, low interest rates, and adverse weather conditions 
    that have damaged and destroyed homes, roads, and bridges in various 
    parts of the country.
        Since fiscal year 1980, the year in which the congressional 
    appropriations rider took effect, more than 650 miners have been killed 
    in occupationally related incidents at mines where we cannot enforce 
    miner training requirements. The rider affects approximately 10,200 
    surface nonmetal mines and 120,000 miners. Approximately 9,200 of these 
    sites are surface aggregate operations (sand and gravel and crushed 
    stone); the remainder are surface operations that mine other 
    commodities such as clay or colloidal phosphate.
        Our data indicate that, of the 243 miners involved in fatal 
    accidents at surface metal and nonmetal mines from 1993 to 1998, about 
    80 percent (199 miners) worked at exempt mines. During this same 
    period, exempt mines accounted for only 64 percent of the number of 
    hours worked at surface mines. From 1993 to 1997, the annual number of 
    fatal accidents at exempt mines almost doubled (from 24 fatalities in 
    1993 to 45 fatalities in 1997). In each of the years 1996 and 1997, 90 
    percent of fatalities at surface metal and nonmetal mines occurred at 
    operations affected by the appropriations rider.
        A large proportion of exempt mines are smaller operations, which 
    experience a higher fatality rate than larger operations. For example, 
    of the 9,200 surface aggregate mines, approximately 4,900 employ five 
    or fewer miners, and approximately 8,100 employ fewer than 20 miners. 
    Long-term data show that mines with fewer than six employees are three 
    times as likely to experience fatalities as mines with 20 or more 
    workers. Also, mines with between six and 19 employees are more than 
    two times as likely to have fatal accidents as operations with larger 
    workforces.
        Several other factors may contribute to the number of fatal 
    accidents, including--
        (1) An influx of new and less experienced miners and mine 
    operators;
        (2) Longer work hours to meet production demands; and
        (3) Increased demand for independent contractors, who may be less 
    familiar with the hazards on mine property.
    
    All of these factors are also more likely to exist when production 
    activity accelerates to meet increases in demand.
        We believe that some of these fatalities may have been prevented if 
    victims had received appropriate, basic miner safety training. Our 
    fatal accident investigations show that the majority of miners involved 
    in fatal accidents at mines affected by the rider had not received 
    health and safety training that complied with the requirements of part 
    48. In 1997, 80 percent of fatal accident victims at exempt mines had 
    not received health and safety training in accordance with part 48. In 
    1998, this increased to 86 percent.
        Safety and health professionals from all sectors of industry 
    recognize that training is a critical element of an effective health 
    and safety program. Training of new employees, refresher training for 
    experienced miners, and training for new tasks serve to inform workers 
    of health and safety hazards inherent in the workplace and, just as 
    important, to enable workers to identify and avoid those hazards. 
    Congress clearly recognized these principles by specifically including 
    training provisions in the Mine Act.
    
    XIII. Discussion of the Final Rule
    
    A. Statutory Requirements
    
        Section 115(a) of the Mine Act authorizes the Secretary of Labor to 
    promulgate miner health and safety training regulations. Section 
    115(a), (b), and (c) set forth minimum requirements for miner training 
    programs. These requirements include:
         Each operator must have a health and safety program 
    approved by the Secretary of Labor;
         Each approved training program for new surface miners must 
    provide for at least 24 hours of training in specified courses, 
    including:
        The statutory rights of miners and their representatives under the 
    Act;
        Use of self-rescue and respiratory devices, where appropriate;
        Hazard recognition;
        Emergency procedures;
        Electrical hazards;
        First aid;
        Walkaround training; and
        The health and safety aspects of the task to which the miner will 
    be assigned;
         Each approved training program must provide for at least 
    eight hours of refresher training every 12 months for all miners;
         Miners reassigned to new tasks must receive task training 
    prior to performing that task;
         New miner training and new task training must include a 
    period of
    
    [[Page 53087]]
    
    training as closely related as is practicable to the miner's work 
    assignment;
         Training must be provided during normal working hours;
         During training, miners must be paid at their normal rate 
    of compensation and reimbursed for any additional cost for attending 
    training;
         Upon completion of each training program, each operator 
    must certify, on a form approved by the Secretary, that the miner has 
    received the specified training in each subject area of the approved 
    health and safety training plan;
         A certificate for each miner must be maintained by the 
    operator and available for inspection at the mine site;
         A copy of the certificate must be given to each miner at 
    the completion of the training;
         When a miner leaves the operator's employ, the miner is 
    entitled to a copy of his or her health and safety training 
    certificates;
         False certification by an operator that training was given 
    is punishable under section 110(a) and (f) of the 1977 Mine Act; and
         Each health and safety training certificate must indicate 
    on its face, in bold letters, printed in a conspicuous manner, that 
    such false certification is so punishable.
        The final training rule takes a performance-oriented approach, 
    where possible, to afford currently exempt operations, particularly 
    small operations, the flexibility to tailor miner training to their 
    particular needs and methods of operation.
    
    B. Summary of the Final Rule
    
        The final rule requires you to develop and implement a written 
    training plan that includes programs for training new and newly hired 
    experienced miners, training miners for new tasks, annual refresher 
    training, and site-specific hazard awareness training. Plans that 
    include the minimum information specified in the final rule are 
    considered approved by us and are not required to be submitted to us 
    for formal review, unless you, the miners, or miners' representative 
    requests it.
        The final rule requires new miners to receive 24 hours of new miner 
    training, with a minimum of four hours of training in specific areas 
    before they begin work; instruction in additional subjects no later 
    than 60 days after beginning employment; and the balance of new miner 
    training no later than 90 days after beginning employment.
        Under the final rule, newly hired experienced miners must receive 
    instruction in the same subjects required for new miners before they 
    begin work, and in one additional subject no later than 60 days after 
    beginning work.
        Every 12 months, all miners must receive no less than eight hours 
    of refresher training that addresses relevant occupational health and 
    safety subjects. The refresher training must include instruction on 
    changes at the mine that could adversely affect the miners' health or 
    safety. You have the flexibility to determine other health and safety 
    subjects addressed in refresher training, although the final rule 
    identifies a number of recommended subjects.
        The final rule requires training for every miner before the miner 
    is reassigned to a task for which he or she has no previous experience. 
    Training must also be given when a miner's task has changed. The 
    training must cover the health and safety aspects and safe work 
    procedures specific to the task. Site-specific hazard awareness 
    training is required for persons who do not fall within the definition 
    of ``miner'' and who are therefore not required to receive 
    comprehensive training (i.e., new miner training or newly hired 
    experienced miner training, as appropriate). The final rule also 
    requires site-specific hazard awareness training for miners employed by 
    production-operators and independent contractors who move from mine to 
    mine as a regular part of their employment. These miners are required 
    to receive comprehensive training but also need orientation in the 
    hazards at the mines where they will be working.
        You are required to certify that a miner has received required 
    training and retain a copy of each miner's training records and 
    certificates for the duration of the miner's employment, except that 
    you must keep certificates of annual refresher training for at least 
    two years. You must keep training records and certificates for miners 
    who have terminated their employment with you for at least 60 days 
    after the employment ends. You may use our existing form for the 
    certification (MSHA Form 5000-23) or maintain the certificate in 
    another format, so long as it contains the minimum information required 
    in the final rule. You are also required to maintain a copy of the 
    current training plan at the mine or have the capability to produce it 
    upon request within one business day. You may keep training records and 
    certificates at the mine site or at a different location, but must 
    provide copies of the records to us and to miners and their 
    representatives upon request.
        We do not approve training instructors under the final rule. 
    Instead, training must be provided by a competent person--someone with 
    sufficient ability, training, knowledge, or experience in a specific 
    area, who is also able to communicate the subject of the training and 
    evaluate the effectiveness of the training provided.
        The final rule adopts the Mine Act requirement that miners be 
    trained during normal work hours and compensated at normal rates of 
    pay. Miners must also be reimbursed for incidental costs, such as 
    mileage, meals, and lodging, if training is given at a location other 
    than the normal place of work.
        The final rule also allows you, where appropriate, to substitute 
    equivalent training required by OSHA or other federal or state agencies 
    to satisfy your training obligations under part 46.
        The final rule addresses responsibility for training and gives 
    primary responsibility to the production-operator for ensuring that 
    site-specific hazard awareness training is given to employees of 
    independent contractors who are required to receive such training. 
    Additionally, independent contractors who employ miners required to 
    receive comprehensive training under the final rule are primarily 
    responsible for ensuring that their employees are given training that 
    satisfies these requirements.
    
    C. Effective Date
    
        Although the proposed rule did not specify an effective date, we 
    solicited comment in the preamble to the proposal on how much time 
    should be allowed for the mining community to come into compliance with 
    the final rule. In the preamble, we stated that we recognized that a 
    very large number of operations would attempt to come into compliance 
    at the same time, and we wanted to allow a reasonable period of time 
    after the final rule's publication for a smooth transition. We also 
    indicated that speakers at the seven preproposal public meetings had 
    recommended compliance periods ranging from six months to a year after 
    the final rule is published. We questioned whether phased-in compliance 
    deadlines, where certain part 46 requirements would go into effect at 
    different stages, would facilitate compliance.
        We received many comments on this issue. Only a few commenters 
    favored phased-in compliance deadlines. One commenter suggested that 
    the final rule designate a six-month preparation period during which 
    operators could develop their training plans, establish recordkeeping 
    systems, experiment with
    
    [[Page 53088]]
    
    training methods, and enroll trainers in instruction courses. This 
    commenter believed that, after the six-month period, the rule should 
    take effect and be enforceable, except that no citations would be 
    issued for violations under this part during the first regular MSHA 
    inspection. Other commenters believed that phased-in compliance 
    deadlines would only serve as a source of confusion or impose 
    unnecessary administrative burdens. These commenters strongly 
    recommended against adoption of phased-in deadlines in the final rule.
        Several commenters favored a six-month effective date, stating it 
    would provide adequate time for compliance if MSHA and state agencies 
    were available to assist operators in such areas as the development of 
    training plans and training materials. One commenter indicated that 
    many operators in his state were already in compliance with existing 
    part 48 and that these operators would need to take little action to 
    comply with part 46. One commenter believed that operators should be 
    required to comply with the final rule no later than 90 days after it 
    is published in the Federal Register, while another suggested a 24-
    month compliance deadline. However, the vast majority of commenters 
    favored a one-year period before the final rule would take effect and 
    become enforceable. One commenter who supported a one-year compliance 
    period stated that many small operators will require assistance in 
    preparing plans and in locating appropriate trainers and training 
    materials. Other commenters advocated a one-year compliance period 
    because they believed it would ensure that the mining community would 
    be able to implement the final rule in a rational manner. Another 
    commenter who advocated a one-year deadline stated that we needed to 
    allow sufficient time for development of training materials appropriate 
    for the mines affected by the final rule. This commenter also believed 
    that significant time was needed to ensure that operators, many of whom 
    are not currently providing training, were familiar with the new 
    requirements in the final rule.
        We have concluded that a one-year effective date, without interim 
    compliance deadlines, will ensure that production-operators, 
    independent contractors, and others affected by the final part 46 rule 
    will have sufficient time to become familiar with the rule's 
    requirements and take steps to come into compliance. Many operators, 
    particularly larger mine operators, are currently in compliance with 
    the majority of part 48 requirements and would need little time to 
    ensure that their training programs are consistent with the provisions 
    of the final rule. However, we are concerned that many small operations 
    affected by this rule have limited or no training programs currently in 
    place. These small operators typically also have limited resources from 
    which to develop and implement new training programs. We recognize that 
    we have an essential role to play in compliance assistance and outreach 
    effort in the coming year, particularly to small operators. This is 
    discussed in greater detail below under the heading ``Implementation of 
    the Final Rule.''
        The final rule takes effect one year after the rule's publication 
    in the Federal Register, giving the mining community an adequate period 
    of time in which to come into compliance with the rule's requirements. 
    You must comply with Sec. 46.3(a) and Sec. 46.8(a) as prescribed in the 
    following table:
    
        Compliance Dates for Production-Operators/Independent Contractors
    ------------------------------------------------------------------------
                  Training plans                       Compliance date
    ------------------------------------------------------------------------
    You must develop and implement a written    October 2, 2000.
     plan, approved by us under either Sec.
     46.3(b) or (c), that contains effective
     programs for training new miners and
     newly hired experienced miners, training
     miners for new tasks, annual refresher
     training, and site-specific hazard
     awareness training..
    ------------------------------------------------------------------------
             Annual refresher training                Compliance dates
    ------------------------------------------------------------------------
    You must provide each miner with no less    (1) No later than 12 months
     than 8 hours of annual refresher            after the miner begins work
     training--.                                 at the mine, or no later
                                                 than March 30, 2001,
                                                 whichever is later; and (2)
                                                 Thereafter, no later than
                                                 12 months after the
                                                 previous annual refresher
                                                 training was completed.
    ------------------------------------------------------------------------
    
    D. Implementation of the Final Rule
    
        Many commenters observed that effective compliance assistance is 
    critical to the successful implementation of the final rule, and that 
    small operations in particular are in need of assistance from state and 
    federal agencies to be able to fulfill their training responsibilities. 
    A number of commenters addressed the type of assistance that we should 
    provide to facilitate compliance with the final rule.
        We appreciate the commenters suggestions about the types of 
    resources that would provide the greatest benefit to the mining 
    community in complying with the final rule. We acknowledge that 
    compliance assistance for the mining community will be a key element in 
    the successful implementation of the final rule. We intend to provide 
    extensive compliance assistance to you as our resources permit, not 
    only through our staff in Metal and Nonmetal Mine Safety and Health, 
    but also through our newly formed Educational Field Services Division 
    in the Directorate of Educational Policy and Development. We also 
    expect recipients of federal funds through our State Grants program to 
    play a significant role in assisting you to develop effective training 
    plans and, at the same time, to satisfy the requirements of the final 
    rule.
        We solicited comments in the preamble to the proposal on whether we 
    should include examples of model training plans, appropriate for 
    different types and sizes of mining operations, in a nonmandatory 
    appendix to the final rule. One of the few commenters who addressed 
    this issue supported including examples of training plans in a 
    nonmandatory appendix. Another commenter recommended that we should 
    encourage mine operators to contact agencies that are designed to 
    provide compliance assistance services, such as our Educational Field 
    Services Division and state grantees, instead of providing them as part 
    of the final rule. This commenter believed that operators would receive 
    more effective compliance assistance in plan development by reaching 
    out to appropriate agencies for guidance. This commenter was concerned 
    that including sample plans as an appendix to the regulation would make 
    it less likely that operators would contact these agencies for 
    assistance. We agree with this commenter, and we are also concerned 
    that placing sample plans in a regulatory appendix could restrict our 
    flexibility in making future refinements and improvements to the sample 
    plans. We have concluded that it is more appropriate to provide mine 
    operators with sample plans as part of an overall compliance assistance 
    and outreach effort that we will initiate for the mining community 
    after publication of the final
    
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    rule. We anticipate that other organizations, including state grantees 
    and large operators, also may develop sample training plans and make 
    them available to small operators to assist in training plan 
    development.
        A number of commenters who addressed implementation of the final 
    rule advocated increased funding for our State Grants program. Under 
    this program, authorized by section 503(a) of the Mine Act, we 
    distribute federal funds to 43 states and the Navajo Nation to 
    supplement their mining health and safety programs. Grants are made to 
    the state agency responsible for miners' health and safety to support 
    health and safety programs, and most of these funds are used to support 
    health and safety training courses. State grantees play an essential 
    role in workplace health and safety by providing effective training to 
    thousands of miners across the country. MSHA's current budget includes 
    $5 million for the States Grants program. Our budget request for fiscal 
    year 2000 would increase that sum to $6.1 million, an increase of 22%.
    
    E. Section-by-Section Discussion
    
        This portion of the preamble discusses each final provision 
    section-by-section. The text of the final rule is included at the end 
    of the document.
    
    Section 46.1  Scope
    
        This section adopts with minor changes proposed Sec. 46.1 and 
    states that the provisions of part 46 set forth mandatory requirements 
    for the training and retraining of miners and other persons at all 
    shell dredging, sand, gravel, surface stone, surface clay, colloidal 
    phosphate, and surface limestone mines. Additionally, Sec. 48.21, the 
    existing scope section in part 48, is amended by this final rule to 
    specifically exclude mines that now are covered by the training 
    requirements of part 46. Part 46 requirements supersede the 
    requirements of part 48 at those mines that have been subject to the 
    congressional appropriations rider since fiscal year 1980.
        The final rule states that the provisions of part 46 contain the 
    mandatory requirements for training and retraining of ``miners and 
    other persons'' at the mines covered by the final rule. Proposed 
    Sec. 46.1 would have provided that the training requirements of part 46 
    were for ``miners working'' at the covered mines. This adjustment in 
    the final rule language recognizes that the final rule's requirements 
    for site-specific hazard awareness training also apply to persons who 
    are not miners and who may not in fact work at the mine, such as 
    visitors or delivery personnel.
        We have promulgated these regulations under a separate part of 
    Title 30 of the Code of Federal Regulations to minimize confusion about 
    which training requirements apply at what mines. We were concerned that 
    if we promulgated these regulations as a subpart to existing part 48, 
    it would make it more difficult for the mining community to distinguish 
    between the two sets of requirements. The few commenters who addressed 
    this issue generally favored the placement of these regulations under a 
    new part.
        As explained in the preamble to the proposed rule, the mining 
    community should recognize that the list of the types of mines where 
    part 46 will now apply, set forth in this section of the final rule, 
    mirrors the language of the congressional budget rider and describes 
    the affected operations in broad terms. The list of mines in this 
    section does not detail every type of operation that falls within the 
    scope of these requirements. For example, part 46 training requirements 
    supersede part 48 requirements at operations that produce marble, 
    granite, sandstone, slate, shale, traprock, kaolin, cement, feldspar, 
    and lime, although these operations are not specifically included in 
    the list of mines in this section.
        As stated in the proposed preamble, part 48 remains in effect at 
    all underground metal and nonmetal mines, all surface metal mines, and 
    a few surface nonmetal mines, such as surface boron and talc mines. 
    Operators at those mines continue to be responsible for complying with 
    the provisions of part 48.
        The final rule takes a flexible and performance-oriented approach 
    to miner health and safety training requirements. This recognizes that 
    the mines that were subject to the congressional budget rider and that 
    are now governed by part 46 are different in size and type from many of 
    the mines under part 48. When the rider was first included as a 
    restriction to our budget appropriations for fiscal year 1980, some 
    mining industry representatives contended that the part 48 regulations 
    were inappropriate for the smaller and less complex operations that are 
    covered by this final rule. There was concern in the industry that the 
    part 48 requirements would be extremely burdensome and costly to 
    implement, forcing many small operations to curtail production during 
    training periods or go out of business altogether. Industry 
    representatives also contended that the part 48 regulations were 
    neither tailored to fit the needs of the various types of mining 
    operations nor flexible enough to be adaptable to those needs. 
    Additionally, the legislative history of the Mine Act reflects 
    Congress' concern that ``miner training may strain the financial 
    resources of many small operators.'' Conference Report No. 95-461, 95th 
    Cong., 1st Sess., 63 (1977).
        In recognition of these concerns, we have developed this rule with 
    small businesses in mind. Almost 9,000 of the approximately 10,000 
    mines affected by the rule have fewer than 20 employees. All of the 
    operations fall well within the Small Business Administration's 
    definition of small business, which for the mining industry is a mine 
    with 500 or fewer employees. Many of these smaller operations typically 
    do not have a formal health and safety program in place.
        A few commenters raised the issue of whether the performance-
    oriented requirements of the final rule provide less protection to 
    miners than the existing training requirements in part 48, contrary to 
    the mandate of the Mine Act. However, most commenters from industry and 
    labor supported the proposed rule. In addition, the National Institute 
    for Occupational Safety and Health (NIOSH) supported the proposed rule, 
    stating the following:
    
        The National Institute for Occupational Safety and Health 
    (NIOSH) supports MSHA in its effort to establish new training 
    requirements for shell dredging, sand, gravel, surface stone, 
    surface clay, colloidal phosphate, and surface limestone mines. We 
    believe that the proposed Part 46 regulations should provide 
    numerous opportunities for effective training. We also support the 
    performance-oriented approach taken by MSHA to make training 
    responsive to the needs of small operators by tailoring miner 
    training to their operations, thus making the training more 
    meaningful and, as a result, reducing the number of injuries and 
    fatalities.
    
        Section 101(a)(9) of the Mine Act provides that ``[n]o mandatory 
    health or safety standard promulgated under this title shall reduce the 
    protection afforded miners by an existing mandatory health or safety 
    standard.'' We interpret section 101(a)(9), consistent with the 
    interpretation adopted by the U.S. Court of Appeals for the D.C. 
    Circuit, to require that all of the health or safety benefits resulting 
    from a new standard must be at least equivalent, taken together, to all 
    of the health or safety benefits resulting from the existing standard. 
    We have concluded that, especially in a time of rapid technological 
    advancement and constantly changing mining methods, a more restrictive 
    interpretation would frustrate Congress' intent to ``provide
    
    [[Page 53090]]
    
    more effective means and measures for improving the working conditions 
    and practices in the Nation's coal or other mines in order to prevent 
    death and serious physical harm * * *.'' Section 2(c) of the Mine Act, 
    30 U.S.C. section 801(c).
        The requirements of this final rule amend the training requirements 
    in part 48 for more than 10,000 surface nonmetal mines, requirements 
    that we have been prohibited from enforcing at these mines for almost 
    20 years. We carefully considered the requirements of the final rule in 
    light of the statutory requirement that no new standard shall reduce 
    the protection afforded miners by our existing mandatory health and 
    safety standards. Although the final rule will allow you greater 
    flexibility in training development and implementation, MSHA has 
    determined that the new requirements will not reduce the protection 
    afforded to surface nonmetal miners under existing part 48. While the 
    means used under part 46 may be more flexible and performance-oriented 
    than part 48, the ultimate result--the effective safety and health 
    training of surface nonmetal miners--will be attained under the new 
    standard.
        The final rule is intended to provide production-operators and 
    independent contractors with the necessary flexibility to devise 
    training programs that best suit their operations and employees. This 
    also recognizes that a large number of the mines affected by the final 
    rule are very small operations, many of which are sand and gravel 
    operations with limited equipment and facilities. These mines 
    frequently are small in size, employ few workers, use less complex 
    equipment, and consist of relatively uncomplicated mining operations. 
    The type of training appropriate for miners at such mines will differ 
    from miner training at a large mine or processing facility with highly 
    specialized and sophisticated equipment and hundreds of employees. The 
    final rule allows operators, with the assistance of miners and their 
    representatives, the latitude to tailor miner training programs to the 
    specific needs of their operations and workforces.
        We also wish to emphasize the enhanced safety and health benefits 
    that result from the reduction in administrative burdens on operators 
    under the final rule, which will allow them to concentrate on ensuring 
    that effective training is being given at their specific operations. 
    For example, the final rule does not require the traditional submission 
    and review of training plans to gain our approval. Instead, operators 
    may choose to develop training plans that are considered approved by us 
    if they meet certain minimum requirements in the final rule. This 
    approach will allow us to focus our resources on verification of plan 
    execution and assistance to you in providing effective training at your 
    mines, rather than on a paper review and approval of more than 10,000 
    training plans at our offices. Likewise, you and training providers 
    would be able to focus on the development of training plans that 
    address the safety and health concerns at your specific operations, 
    rather than on traditional procedures to gain our approval.
        The flexibility included within several sections of the final rule, 
    offering the option of presenting training in short durations and in 
    various formats, will allow miners to more easily retain information 
    and receive effective training in close proximity to their work and 
    associated hazards. Under existing part 48 requirements for annual 
    refresher training, training sessions must last a minimum of 30 
    minutes. Under the part 46 final rule, training sessions may be of any 
    duration and can be conducted at the work site near potential safety 
    and health hazards. This approach would allow miners to receive 
    training at a time and location close to where the training is needed.
        Additional safety and health benefits will also result from the 
    specific requirement in part 46 that provides that training must be 
    presented in language understood by the miners who are receiving the 
    training. The final rule also includes specific provisions which 
    require production-operators to provide information about site-specific 
    hazards to independent contractors who perform work at their mine. 
    Similarly, the final rule provides that independent contractors must 
    inform production-operators of any hazards they might present at the 
    work site. In addition, unlike existing part 48, the requirements of 
    this final rule would apply to construction workers who perform work at 
    mine sites and are faced with similar hazards presented to other 
    miners.
        The final rule also includes a requirement for task training when a 
    miner is reassigned to a task in which he or she has no previous work 
    experience, or when a change occurs to the safety and health risks 
    encountered by the miner while performing his or her tasks. Part 48 
    only applies to changes in ``regularly assigned tasks,'' and therefore 
    would not provide for task training for the one-time assignment of 
    tasks, such as emergency repairs. Accident and injury data show that 
    miners under the scope of the final rule are routinely injured while 
    performing such emergency repair tasks, even though it may be a one-
    time task. In addition, the part 46 final rule provides that a miner 
    must be able to demonstrate that he or she can perform a new task in a 
    safe and healthful manner, even if the miner has had previous 
    experience or training in the task. Under part 48, a miner is allowed 
    to perform the new task if he or she has experience or received 
    training within the previous 12 months. Specific knowledge and skills 
    can be lost or diminished significantly if they are not used. For these 
    reasons, the final rule requires miners to demonstrate that they have 
    retained the needed knowledge and skills to perform the task safely.
        In developing the final rule, we have also attempted to develop 
    practical requirements for effective safety and health training 
    programs at mines covered by the rule. For example, the final rule does 
    not require instructors to receive formal approval by MSHA, but instead 
    provides that ``competent persons'' designated by the production-
    operator or independent contractor may instruct miners in subjects in 
    the areas of the competent persons' expertise.
        Additionally, the final rule recognizes the difficulty that some 
    small operators may have in providing all 24 hours of new miner 
    training before a miner starts work. Many operators indicated that it 
    is not practical for all of this training to be provided before the 
    miner is assigned job duties. In addition, commenters stated that 
    training can be more effective if it is given over a two-or three-month 
    period.
        The final rule requires that a new miner receive a minimum of four 
    hours of training in specific subjects before the miner begins work. 
    The amount of time needed for this training will depend on the size and 
    complexity of the mine where the training is given. In some cases this 
    training may require eight hours or more to adequately introduce new 
    employees to the work environment and mine site hazards, such as at a 
    larger mine with complex operations. In other cases, no more than the 
    required minimum of four hours of pre-work training may be needed to 
    cover the necessary subjects at a very small mine with only a couple of 
    employees and a few pieces of equipment.
        The requirements of the final rule are sufficiently consistent with 
    existing requirements in part 48, so that those of you who currently 
    comply with part 48 will have to make little adjustment in your 
    existing training programs to comply with the part 46 rule. As 
    mentioned above, part 46 includes
    
    [[Page 53091]]
    
    several different requirements from part 48 which will result in the 
    enhanced safety and health of workers at the mines covered by the final 
    rule. These differences include such things as the application of 
    training requirements to construction workers, the retention of certain 
    training records for longer durations, and the requirement that 
    training must be presented in language understood by the miners who are 
    receiving the training. Certain provisions may require you to make 
    adjustments to your existing training programs, for example:
    
    ----------------------------------------------------------------------------------------------------------------
                            Part 48                                                  Part 46
    ----------------------------------------------------------------------------------------------------------------
                           DEFINITION
     
     48.22(a)(1)(i) This definition of miners does not       46.2 The definition of miner includes any construction
     include construction workers..                           worker who is exposed to hazards of mining operations.
     
                      RECORDS OF TRAINING
     
    (a) Upon a miner's completion of each MSHA approved      (a) You must record and certify on MSHA Form 5000-23,
     training program, the operator must record and certify   or on a form that contains the information listed in
     on MSHA Form 5000-23 that the miner has received the     Sec.  46.9(b), that each miner has received training
     specified training.                                      required under this part.
    N/A....................................................  (b)(5) The record must include a statement signed by
                                                              the person designated in the MSHA-approved training
                                                              plan for the mine as responsible for health and safety
                                                              training, that states ``I certify that the above
                                                              training has been completed.''
    (c) Copies of training certificates for currently        (h) You must maintain copies of training certificates
     employed miners must be kept at the mine site for 2      and training records for each currently employed miner
     years, or for 60 days after termination of employment.   during his or her employment, except records and
                                                              certificates of annual refresher training under Sec.
                                                              46.8, which you must maintain for only two years. You
                                                              must maintain copies of training certificates and
                                                              training records for at least 60 calendar days after a
                                                              miner terminates employment.
    ----------------------------------------------------------------------------------------------------------------
    
        In the preamble to the proposed rule, we solicited comment on 
    whether the final rule should specifically allow you the option of 
    complying with the requirements of part 48 in lieu of part 46. Only a 
    few commenters addressed this issue. One commenter stated that giving 
    mine operators the option of complying with part 48 would adversely 
    affect implementation of the rule. This commenter indicated that 
    allowing such an option would make our enforcement of training 
    requirements more difficult. Another commenter supported this option, 
    stating that many of the operators who are covered by the final rule 
    currently comply with part 48 and should be allowed to continue to do 
    so.
        The final rule does not allow operators the option of complying 
    with part 48 in lieu of the requirements of part 46. We have concluded 
    that providing such an option would provide less effective training and 
    protection for the miners working at your mines. Part 46 requires 
    training for construction workers and it takes a proactive approach 
    toward the training of independent contractor employees that come onto 
    mine property. We believe that these provisions, along with other 
    enhancements included in part 46, will result in improved safety and 
    health for the construction workers, independent contractor workers, 
    and miners who work near these individuals at the mine. For these 
    reasons, we have not adopted this compliance option in the final rule. 
    However, the final rule does allow production-operators and independent 
    contractors to substitute relevant training given under part 48 for 
    training required under part 46.
    
    Section 46.2  Definitions
    
        This section of the final rule includes definitions of certain 
    terms used in part 46. We are providing these definitions to assist the 
    mining community in understanding the requirements of the rule.
        We have adopted most of the definitions included in the proposal 
    into the final rule. In some cases, we have made changes to the 
    definitions to respond to concerns of commenters. We explain these 
    changes in the preamble discussion for each term.
        Act. Section 46.2(a) states that all references to the ``Act'' in 
    the final rule mean the Federal Mine Safety and Health Act of 1977, 30 
    U.S.C. 801 et seq.
        Competent person. Under the final rule, a ``competent person'' must 
    conduct the training required under this part, and final Sec. 46.2(b) 
    adopts the proposed definition of this term, with some changes. The 
    final rule defines ``competent person'' as a person designated by the 
    production-operator or independent contractor who has the ability, 
    training, knowledge, or experience to provide training to miners in his 
    or her area of expertise. The competent person must be able both to 
    communicate the training subject effectively to miners and to evaluate 
    whether the training given to miners is effective.
        The final definition of ``competent person'' is similar to the 
    definition included in the proposed rule, but we have made several 
    changes in the final definition in response to commenters. Instead of 
    providing that the ``operator'' designate the competent person, as in 
    the proposal, the final rule provides that the ``production-operator or 
    independent contractor'' designate the competent person. Although the 
    proposal would have defined the term ``operator'' to include both 
    production-operators and independent contractors, we have concluded, 
    based on comments, that the final rule definition should refer 
    specifically to both. This emphasizes that independent contractors are 
    ``operators'' under the Mine Act and are responsible for providing 
    effective training to their employees under the requirements of the 
    final rule. Use of both terms also eliminates any confusion that the 
    use of the generic term ``operator'' may create. The proposed 
    definition also did not include a specific reference to the competent 
    person's ability to communicate. The final rule includes this 
    requirement in response to commenters who believe that communication 
    skills are critical to effective training.
        Many commenters generally supported the proposed definition of 
    ``competent person.'' They stated that instructors should not have to 
    satisfy extensive qualification requirements or obtain MSHA approval 
    before providing training to miners. A number of commenters indicated 
    that the flexible provisions proposed would allow operators to have 
    access to more than adequate resources to ensure quality training for 
    miners.
    
    [[Page 53092]]
    
        Several commenters recommended that we insert language in the 
    definition of ``competent person'' that requires instructors to have 
    knowledge of mining and of the specific hazards miners face on the job. 
    These commenters believed that this language would enhance the quality 
    of training. Another commenter suggested that the definition include a 
    requirement that the competent person have at least one year of mining 
    experience.
        We considered adopting these recommendations in the final rule. We 
    have concluded, however, that such requirements would not guarantee 
    quality instruction and may unnecessarily restrict otherwise qualified 
    persons from providing training under the final rule. We agree with the 
    views of one commenter who stated that there may be some situations 
    where mining experience could enhance the quality of training, but that 
    persons without such experience could still be competent in educating 
    people and communicating necessary subjects to them. A wide variety of 
    subjects will be relevant to health and safety conditions at the 
    various mine sites covered by this rule. Persons who have expertise in 
    certain relevant areas, but who lack actual mining experience or 
    experience applicable to mining, can be effective instructors in their 
    specialized areas. For example, the final rule requires that you 
    instruct new miners and newly hired experienced miners in the statutory 
    rights of miners. A requirement that the person who teaches this 
    subject have either actual mining experience or mine-specific knowledge 
    would serve no purpose. Someone without mining experience but with a 
    legal background, such as a paralegal or an attorney familiar with the 
    provisions of the Mine Act, could provide effective instruction on that 
    subject. In the same vein, someone without mining experience but with a 
    medical background, such as a nurse practitioner or an emergency 
    medical technician, could provide effective instruction in first aid. 
    Finally, an individual with expertise in electrical hazards on specific 
    types of equipment that are used in both mining and non-mining 
    applications could provide appropriate training on those hazards, even 
    if that person has no mine-specific experience.
        Several commenters stated that there are certain skills a person 
    must have in order to be considered competent. One commenter stated 
    that a person who conducts training should have not only substantive 
    knowledge of the subject area but also the ability to effectively 
    communicate the information to the persons receiving the training. Some 
    commenters recommended that the definition of ``competent person'' 
    address communication skills, such as lecturing and writing, and the 
    ability to train adults. Several commenters recommended that, at a 
    minimum, persons designated to provide training receive specific 
    instructor training to ensure that they are able to teach miners 
    effectively. Other commenters stated that the proposed definition was 
    appropriate and that the final rule should not require specific 
    training for instructors. These commenters maintained that production-
    operators and independent contractors were in the best position to 
    determine who was capable of providing training and that the final rule 
    should give them flexibility and latitude in designating competent 
    persons. A number of commenters also stated that formal instructor 
    training would not guarantee quality training.
        As under the proposed rule, the definition in the final rule does 
    not specify the type or extent of ability, training, knowledge, or 
    experience needed for a person to be ``competent'' and, therefore, 
    qualified to provide training under the final rule. This is consistent 
    with the overall performance-oriented approach taken in the final rule. 
    We agree with commenters who were concerned that more stringent 
    requirements could seriously limit the pool of potential instructors, 
    without any assurance that these requirements enhance the quality of 
    the training provided. However, this approach places the responsibility 
    on production-operators and independent contractors to ensure that 
    their employees receive adequate health and safety training under the 
    final rule. Production-operators and independent contractors must 
    assess whether the person who will provide training has the requisite 
    expertise, communication skills, and ability to evaluate the training.
        The final rule does not adopt the recommendation of some commenters 
    that the definition of ``competent person'' specifically require 
    training in effective instruction or communication. However, in 
    response to commenters who indicated that communication skills were 
    essential for good training, the final rule definition of ``competent 
    person'' includes language requiring that the competent person be able 
    to effectively communicate the training subject to miners.
        The final rule, like the proposal, also requires that the competent 
    person have the ability to evaluate whether the training given to 
    miners is effective. As addressed in greater detail in the preamble 
    discussion for Sec. 46.4, the final rule does not specify how the 
    competent person should conduct such an evaluation. Instead, as part of 
    our outreach efforts, we intend to provide compliance assistance to you 
    to help you to identify competent persons to provide training for your 
    miners.
        One commenter stated that the ``competent person'' should be able 
    to demonstrate the ability to identify hazards and should have the 
    authority to take prompt corrective measures to eliminate existing or 
    potential hazards. The definition suggested by this commenter is 
    similar to the definition of ``competent person'' under OSHA 
    regulations at 29 CFR 1926.32(f). OSHA regulations define ``competent 
    person'' as--
    
        * * * one who is capable of identifying existing and predictable 
    hazards in the surroundings, or working conditions which are 
    unsanitary, hazardous, or dangerous to employees, and who has 
    authorization to take prompt corrective measures to eliminate them.
    
        You should not confuse the OSHA definition of ``competent person'' 
    with the same term under this final rule. Under OSHA regulations, a 
    ``competent person'' is not only responsible for worker training, but 
    also must have the authority to correct workplace hazards. Our final 
    rule, like existing part 48, limits instructors' responsibilities to 
    providing training to miners and does not require the instructor to 
    have the authority to eliminate workplace hazards. Correction of 
    hazards remains the responsibility of the production-operator and the 
    independent contractor.
        Equivalent experience. Final Sec. 46.2(c) defines ``equivalent 
    experience'' as work experience where the person performed duties 
    similar to duties performed in mining operations at surface mines. The 
    proposed rule included this term in several provisions but did not 
    define the term. Several commenters questioned what constituted 
    equivalent experience, stating that the final rule should provide mine 
    operators with guidance in determining the kinds of experience that 
    would be considered equivalent, in such areas as construction or public 
    utility work. In response to these comments, the final rule provides 
    examples of the types of experience that may be equivalent, such as 
    work as a heavy equipment operator, truck driver, skilled craftsman, or 
    plant operator. We intend that these examples serve to illustrate the 
    types of work that may be counted as equivalent experience under the 
    final rule, but these examples are not an exhaustive list. As we stated 
    in the preamble to the proposal,
    
    [[Page 53093]]
    
    ``equivalent experience'' includes such things as work at a 
    construction site or other types of jobs where the miner has duties 
    similar to the duties at the mine where he or she is employed, in a 
    work environment similar to the mine environment.
        Experienced miner. A number of commenters addressed the proposed 
    definition of ``experienced miner.'' Like the proposal, final 
    Sec. 46.2(d) provides that a miner is ``experienced'' if he or she 
    satisfies one of several criteria. The final rule adopts the criteria 
    included in the proposal and, in response to comments, adds a provision 
    that a miner with 12 months of cumulative surface mining or equivalent 
    experience on or before the effective date of the final rule is an 
    ``experienced miner.''
        Section 46.2(d)(1)(i) of the final rule, like the proposal, brings 
    within the definition of ``experienced miner'' any person employed as a 
    miner on April 14, 1999--the date that the proposed rule was published 
    in the Federal Register. Most regularly employed miners will be 
    ``experienced'' under this definition, and therefore not subject to the 
    new miner training requirements in Sec. 46.5 of the final rule. This is 
    similar to the approach taken in 1978 when part 48 went into effect. 
    The definition of ``experienced miner'' in part 48 included all persons 
    employed as miners on the effective date of the regulation, regardless 
    of the length of their mining experience or the extent of their health 
    and safety training. Most miners who were employed on April 14, 1999, 
    even those at intermittent operations, will have accrued at least 
    several months of experience by the rule's effective date.
        Under final Sec. 46.2(d)(1)(ii), a person will be considered an 
    ``experienced miner'' if he or she has at least 12 months of cumulative 
    surface mining or equivalent experience on or before the effective date 
    of the final rule. In the preamble to the proposed rule, we pointed out 
    that a miner with many years of experience who happened to be out of 
    work on April 14, 1999, would not be an ``experienced miner'' under the 
    proposal. We solicited comment on whether this would have an adverse 
    impact at some operations, particularly those that operate on an 
    intermittent or seasonal basis. Many commenters responded, expressing 
    their concern that the proposed definition would mean that miners with 
    extensive mine employment would not be considered experienced and would 
    be required to receive new miner training. In contrast, a miner who was 
    employed on one specific day--April 14, 1999--would be considered 
    experienced and subject to less comprehensive training requirements. 
    These commenters strongly recommended that the final rule include 
    miners who had accrued at least 12 months of experience before the 
    effective date of the final rule within the definition of ``experienced 
    miner.'' We agree with the point made by these commenters, and the 
    final rule adopts the suggestion of these commenters. Additionally, the 
    final rule clarifies the intent of the proposal that the 12 months of 
    experience are cumulative and may be accrued in non-consecutive months. 
    This recognizes that many operations affected by this rule operate 
    seasonally or intermittently, and that it is not uncommon for miners to 
    work several months on and several months off. These patterns of 
    employment make it difficult, if not impossible, for many miners to 
    accrue 12 months of experience in one continuous period.
        Commenters supported this interpretation, but strongly recommended 
    that the language of the rule itself specifically provide that miners 
    may accrue experience in non-consecutive months. We agree with 
    commenters that this interpretation should be clarified, and the final 
    rule provides that the requisite experience must total at least 12 
    ``cumulative'' months.
        The final rule, like the proposal, allows equivalent experience to 
    be counted toward the required 12 months of cumulative experience. We 
    recognize that the operations and equipment at many of the mines 
    covered by this final rule are very similar to the operations and 
    equipment used at many non-mining operations, such as road construction 
    sites. Although commenters generally supported credit for equivalent 
    work under the definition of ``experienced miner,'' one commenter 
    recommended against such credit. This commenter contended that credit 
    for equivalent experience would not enhance miner health and safety 
    because many injuries and deaths occur among newly hired experienced 
    miners. We acknowledge that miners who are unfamiliar with a new mine 
    site, even those with extensive experience, may be at risk of injury. 
    To address such concerns, Sec. 46.6 of the final rule requires newly 
    hired experienced miners to receive specified training. This training 
    is intended to ensure that experienced miners are thoroughly familiar 
    with the particular environment and hazards present at a mine that is 
    new to them.
        Several commenters recommended that the final rule provide guidance 
    on what constitutes equivalent experience. In response, the term 
    ``equivalent experience'' has been defined in Sec. 46.2 as ``work 
    experience where the person performed duties similar to duties 
    performed in mining operations at surface mines.'' This definition is 
    described in more detail elsewhere in this section of the preamble.
        Under the final rule, operators must determine the extent of the 
    miner's experience, and also whether any non-mining experience is 
    equivalent. The final rule imposes no specific requirements for 
    tracking or recording the accumulated experience. It is the 
    responsibility of production-operators and independent contractors to 
    determine the miner's experience, based on the miner's work and 
    training history.
        Paragraph (d)(1)(iii) of final Sec. 46.2 includes within the 
    definition of ``experienced miner'' a person who began employment at a 
    mine after April 14, 1999, the date of publication of the proposal, but 
    before the effective date of the final rule, and who has received new 
    miner training consistent with the requirements proposed under 
    Sec. 46.5 or with existing requirements for surface miners at 
    Sec. 48.25. This is similar to a provision included in the proposal and 
    is intended to provide flexibility to those of you who are already 
    providing training to your miners under part 48, or who wish to provide 
    training under the requirements of proposed part 46 before the final 
    rule takes effect. This provision is not intended to require compliance 
    with the proposed rule, but was proposed as a voluntary option for 
    those of you who wanted to begin developing a training program before 
    the publication of the final rule.
        This aspect of the proposed rule received little substantive 
    comment. However, the final rule clarifies which miners are affected by 
    this provision. Under the final rule, this paragraph will apply to 
    miners who began employment as miners after April 14, 1999, but before 
    the effective date of the final rule. You should be aware that a miner 
    who began employment between these dates may otherwise be considered 
    ``experienced'' under paragraph (d)(1)(ii) because he or she will 
    accrue 12 months of experience by the rule's effective date. Miners who 
    have not accrued the necessary experience and who do not otherwise fall 
    within the definition of ``experienced miner'' must receive new miner 
    training under the final rule.
        Final Sec. 46.2(d)(1)(iv) provides that a person employed as a 
    miner on or after the effective date of the final rule who has 
    completed 24 hours of new miner training under either Sec. 46.5 or 
    Sec. 48.25 and who has at least 12 months of
    
    [[Page 53094]]
    
    cumulative surface mining or equivalent experience would be an 
    ``experienced miner'' under the final rule. As discussed earlier, the 
    use of the term ``cumulative'' in the final rule is intended to make 
    clear that the necessary experience need not have been gained in 
    consecutive months, but can be accumulated over a period of time. Also 
    as discussed earlier, the final rule reflects the intent of the 
    proposal and clarifies that this provision applies to miners who are 
    employed as miners on or after the effective date of the final rule.
        Several commenters recommended that the final rule define the term 
    ``experienced miner'' as a person who either has 12 months of 
    experience or has received the required 24 hours of new miner training, 
    but not both. These commenters believed that either training or 
    experience provided a sufficient basis to consider a miner 
    ``experienced'' under the final rule.
        As we indicated in the preamble to the proposed rule, we have 
    concluded that an ``experienced miner'' should have both training and 
    work experience. Nothing offered by commenters has persuaded us 
    otherwise. However, we continue to recognize that many miners currently 
    working at mining operations affected by the final rule have extensive 
    experience in the industry and should not be treated as inexperienced 
    miners when the final rule takes effect. The final rule therefore 
    provides that a miner will be considered experienced on the rule's 
    effective date if he or she either has accrued a certain level of 
    mining experience or has received specified health and safety training. 
    This recognizes that there will be a period of transition for the 
    mining community on the effective date of the final rule and is 
    intended to facilitate compliance. The definition in the final rule, 
    like that in the proposal, allows equivalent experience to be counted 
    towards the 12-month requirement.
        Final Sec. 46.2(d)(2) is adopted without change from the proposal 
    and provides that an experienced miner retains that status permanently 
    under part 46. This is consistent with recent revisions to part 48. 
    This aspect of the proposal received little comment, but was generally 
    supported by those commenters who addressed it. This provision applies 
    in those situations where a miner is returning to work in the mining 
    industry after being away, either because the miner took a job in 
    another industry, such as construction, or because he or she had been 
    laid off. Once a miner attains the status of an ``experienced miner'' 
    under the final rule, he or she is considered experienced permanently. 
    However, you should be aware that final Sec. 46.6 requires that newly 
    hired experienced miners complete newly hired experienced miner 
    training no later than 60 days after beginning their employment.
        Independent contractor. Final Sec. 46.2(e), like the proposal, 
    defines ``independent contractor'' as a person or entity that contracts 
    to perform services at a mine under this part. This is consistent with 
    the language of the Act, which includes independent contractors who 
    perform services or construction at a mine within the definition of the 
    term ``operator.'' This aspect of the proposal received little comment, 
    except that several commenters found that the proposal's use of the 
    term ``operator'' to refer to both production-operators and independent 
    contractors was confusing. In response to these comments, the final 
    rule use both ``production-operator'' and ``independent contractor,'' 
    where appropriate, to avoid any misunderstanding.
        Mine Site. Section 46.2(f) of the final rule defines the term 
    ``mine site'' for purposes of part 46 as ``an area of the mine where 
    mining operations occur.'' The final rule defines the term ``mining 
    operations'' as ``mine development, drilling, blasting, extraction, 
    milling, crushing, screening, or sizing of minerals at a mine; 
    maintenance and repair of mining equipment; and associated haulage of 
    materials within the mine from these activities.'' The proposed rule 
    used the term ``mine site'' but did not define it. At some mines, there 
    may be portions of mine property where no mining operations occur and 
    where mining hazards are limited or nonexistent, such as an office 
    building that is on mine property but is isolated from mining 
    activities. This situation may be more common at larger mines with more 
    extensive operations. The term ``mine site'' does not include such 
    areas within its definition.
        Miner. The term miner is defined in final Sec. 46.2(g)(1)(i) as any 
    person, including any operator or supervisor, who works at a mine and 
    is engaged in mining operations. This definition specifically includes 
    within its scope independent contractors and employees of independent 
    contractors who are engaged in mining operations. Section 
    42.2(g)(1)(ii) also clarifies that the definition of ``miner'' includes 
    any construction worker who is exposed to hazards of mining operations.
        The definition of ``miner'' in the final rule differs from the 
    definition in the proposal, which would have defined ``miner'' as a 
    person engaged in mining operations integral to extraction or 
    production. The proposed rule defined ``extraction or production'' as 
    the mining, removal, milling, crushing, screening, or sizing of 
    minerals, as well as the haulage of these materials, a narrower range 
    of activities than the term ``mining operations'' under the final rule.
        Many commenters supported the proposed definition of ``miner,'' 
    stating that it was consistent with the overall approach of the 
    proposal to provide training commensurate with the risks experienced by 
    the person to be trained. The definition of ``miner'' in the final rule 
    is intended to address the concerns of several commenters that the 
    proposed definition was not sufficiently inclusive. Some of these 
    commenters stated that workers are killed and disabled at mine sites 
    every year even though they do not directly participate in the 
    extraction and production process. Several commenters recommended that 
    the final rule define ``miner'' to include persons who are regularly or 
    frequently exposed to mine hazards. These commenters were concerned 
    that limiting comprehensive training to those engaged in activities 
    that were integral to extraction or production would mean that some 
    workers exposed to hazards would not have the proper training and would 
    be unable to recognize the hazards and protect themselves. One 
    commenter pointed out that individuals who enter mine property to 
    service, maintain, assemble, or disassemble mine extraction or 
    production equipment are at risk, but it was not clear that the 
    proposed definition of ``miner'' would include these workers.
        We intend that the definition of ``miner'' include persons who are 
    engaged in activities related to day-to-day mining operations. The 
    final rule defines ``miner'' in terms of the activities the individual 
    performs at the mine, which are activities that would expose workers to 
    hazards associated with mining operations. We intend that workers who 
    provide regular maintenance of mining equipment on the mine site be 
    considered ``miners'' under the final rule. However, the proposed rule 
    was not clear on this point. To address this, the definition of 
    ``mining operations'' in the final rule specifically includes 
    maintenance and repair within its scope, and those workers who maintain 
    and repair equipment would be ``miners.''
        You should be aware, however, that Sec. 42.2(g)(2) provides that 
    maintenance and service workers who do not work at a mine site for 
    frequent or extended periods are excluded from the definition of 
    ``miner.'' This means that maintenance and service workers who
    
    [[Page 53095]]
    
    come onto mine property infrequently or for short periods of time, and 
    whose exposure to mine hazards is consequently limited, are not 
    considered ``miners'' for purposes of part 46.
        The final rule, like the proposal, specifically includes operators 
    and supervisors within the definition of ``miner'' if they are engaged 
    in mining operations; operators and supervisors who fall within the 
    definition are covered by the same training requirements in the final 
    rule as rank-and-file miners. Commenters were generally supportive of 
    this aspect of the proposal and stated that the type of training that 
    workers receive should depend on the types of work they are performing 
    and the hazards that they encounter in performing that work, not on 
    their job titles. The final rule also clarifies the intent of the 
    proposal that independent contractors and independent contractor 
    employees who are engaged in mining operations are also ``miners'' 
    under the final rule. This clarification responds to several commenters 
    who were concerned that the proposed rule did not make clear that 
    independent contractors are included within this definition.
        Final Sec. 46.2(g)(1)(ii) provides that ``miner'' also means any 
    construction worker who is exposed to hazards of mining operations. 
    Although the proposed rule itself was not explicit that construction 
    workers exposed to mining hazards were included, we stated in the 
    proposed preamble that the requirements of this rule would apply to 
    construction workers who work at mines covered by the rule. To ensure 
    that there is no question under the final rule as to the status of 
    construction workers, the final definition of ``miner'' specifically 
    references construction workers.
        Our intention under the proposal was that construction workers who 
    were engaged in activities integral to extraction and production would 
    be considered ``miners.'' We provided an example in the proposed 
    preamble of a construction worker who might be a miner under the 
    proposal. In this example the construction worker was building a new 
    crusher in an active quarry. A number of commenters seriously 
    questioned this example, stating that until the crusher is operational, 
    extraction and production activities have not begun, and the 
    construction worker would not be a ``miner'' under the definition in 
    the proposed rule. We agree with commenters that this example may not 
    be consistent with the language in the proposed rule. These comments 
    highlight the fact that construction workers, because of the nature of 
    their work, are not typically engaged in mining operations, such as in 
    the example in the preamble to the proposal. However, construction 
    workers who are at an active mine site will be exposed to significant 
    hazards of mining. Construction workers are also typically at the mine 
    site for extended periods because of the nature of their work, unlike 
    many other employees of independent contractors. For these reasons, the 
    final rule now provides that construction workers who are exposed to 
    hazards of mining operations are considered ``miners'' under the final 
    rule. This means that construction workers who work in an active mine 
    site are considered ``miners'' and must receive comprehensive training 
    (i.e., new miner training or newly hired experienced miner training, as 
    appropriate). Construction workers who are not ``miners'' must receive 
    site-specific hazard awareness training under Sec. 46.11(b). We 
    solicited comment in the preamble to the proposal on whether we should 
    promulgate separate training standards for construction workers. Most 
    commenters who addressed this issue opposed the development of separate 
    training requirements for construction workers and supported the 
    application of the final rule to those workers. These commenters 
    maintained that it was appropriate to include construction workers 
    under the training regulations that apply to other workers at mine 
    sites, pointing out that many of the serious injuries and fatalities in 
    the aggregates industry involve contract construction workers. Only one 
    commenter expressed strong opposition to applying the requirements of 
    the final rule to construction workers. This commenter asserted that 
    including construction workers under the final rule was directly 
    contrary to the Mine Act's statutory language directing MSHA to 
    promulgate appropriate training standards specifically governing 
    construction workers at mine sites. This commenter also maintained that 
    construction workers should not be subject to mandatory training 
    requirements until MSHA promulgates separate regulations under section 
    115(d) of the Mine Act.
        We do not agree that the Mine Act mandates that training 
    requirements for construction workers at mines must be developed as 
    separate standards. As we indicated in the preamble to the proposal, 
    the Mine Act does not prohibit the application of part 46 requirements 
    to construction workers. Section 115(d) of the Mine Act simply directs 
    the Secretary of Labor to ``promulgate appropriate standards for safety 
    and health training for coal or other mine construction workers.'' 
    There is nothing in the statutory language that requires independent 
    training requirements that apply exclusively to mine construction 
    workers.
        Final Sec. 46.2(g)(2) is adopted from the proposal with a minor 
    change and further clarifies that the definition of ``miner'' does not 
    include scientific workers, delivery workers, customers, vendors, 
    visitors, or maintenance or service workers who do not work at a mine 
    site for frequent or extended periods. The proposed rule would have 
    excluded ``occasional, short-term maintenance or service workers'' as 
    well as ``manufacturers' representatives'' from the definition of 
    miner. The final rule adopts language that we use in our policy under 
    part 48 to characterize maintenance and service workers who are not 
    regularly exposed to mine hazards and who are therefore not required to 
    receive comprehensive training. We determined that it would be more 
    straightforward to adopt existing terms into the final rule rather than 
    attempt to define new terms--i.e., ``occasional'' and ``short-term''--
    that we intend to mean essentially the same thing. We intend that the 
    terms ``frequent'' and ``extended'' have the same meaning as under part 
    48. That is, ``frequent'' exposure is a pattern of exposure to mine 
    hazards occurring intermittently and repeatedly over time. ``Extended'' 
    exposure means exposure to mine hazards of more than five consecutive 
    work days. Consequently, maintenance or service workers who are not at 
    a mine site for frequent or extended periods would not be ``miners'' 
    under the final rule.
        Upon further consideration and in response to commenters, we have 
    not adopted the proposed blanket exclusion of ``manufacturers' 
    representatives'' from the definition of ``miner''. Instead, under the 
    final rule, whether or not a manufacturer's representative is a 
    ``miner'' depends on the circumstances of each case. A manufacturer's 
    representative is a ``miner'' if he or she is engaged in mining 
    operations at mine sites--such as maintaining or repairing equipment--
    for frequent or extended periods. Manufacturers' representatives who 
    are frequently at mine sites but who are not engaged in mining 
    operations would not be ``miners'' under this definition. For example, 
    a manufacturers' representative who is merely marketing mine equipment
    
    [[Page 53096]]
    
    would not be a miner, even if he or she is at a mine site on a daily 
    basis.
        Several commenters suggested that the final rule provide examples 
    of the types of workers who are considered ``miners.'' Commenters 
    believed that examples would greatly benefit operators in determining 
    who is a ``miner'' under the final rule. Although we agree that 
    examples would provide clarification, we believe that this guidance is 
    best provided in the compliance materials that we will be developing to 
    assist production-operators and independent contractors in complying 
    with the final rule.
        Mining operations. As indicated in the preamble discussion of the 
    definition of ``miner,'' the final rule defines ``miner'' as a person 
    engaged in mining operations, and final Sec. 46.2(h) defines ``mining 
    operations''. The proposal would have defined ``miners'' as workers 
    engaged in mining operations integral to ``extraction and production.'' 
    This definition would also have specifically included the associated 
    haulage of these materials at the mine. The proposed rule would have 
    defined ``extraction or production'' as ``the mining, removal, milling, 
    crushing, screening, or sizing of minerals at a mine.''
        ``Mining operations'' was not defined in the proposal, and, as 
    discussed above, essentially replaces the proposed definition of 
    ``extraction or production''. ``Mining operations'' is a slightly 
    broader definition that includes mine development, drilling, blasting, 
    extraction, milling, crushing, screening, or sizing of minerals at a 
    mine; maintenance and repair of mining equipment; and associated 
    haulage of materials within the mine from these activities. This change 
    responds to commenters who were concerned that the proposed definition 
    of ``miner'' was too narrow and that workers who were exposed to 
    significant mining hazards, such as maintenance workers, would not be 
    included within the definition. The definition of ``mining operations'' 
    specifically includes maintenance and repair of mining equipment, as 
    well as haulage of materials within the mine site. Because the 
    enumerated activities are broader than ``extraction and production,'' 
    they are referred to in the final rule by the term ``mining 
    operations.''
        One commenter stated that the haulage of processed materials from 
    stockpiles to offsite customers should be excluded from the definition 
    of ``extraction or production.'' The commenter believed that this would 
    therefore exclude delivery drivers and customer drivers from the 
    definition of ``miner.'' In fact, we intended to exclude customers and 
    delivery personnel from the definition of ``miner.'' To clarify this 
    point, the definition of ``mining operations'' includes the haulage of 
    materials within the mine. Haulage of materials away from the mine is 
    not included in the final rule's definition of ``mining operations,'' 
    and persons who perform only this type of work do not fall within the 
    definition of ``miner.'' Section 42.2(g)(2) also indicates that 
    commercial over-the-road truck drivers may be considered ``customers'' 
    under the final rule and excluded from the definition of ``miner.''
        The definition of ``mining operations'' includes ``mine 
    development'', to make clear that certain activities preliminary to 
    extraction would be included. These activities include such things as 
    drilling, mining and developmental work on both newly discovered and 
    established mineral deposits. We have historically considered this 
    phase of activities part of the extraction phase of mining and thus 
    subject to our jurisdiction. However, this would not include 
    exploratory drilling, reconnaissance, search, or prospecting that takes 
    place off of an existing mine site and that is conducted in the search 
    of the initial discovery of mineral deposits.
        New miner. Section 46.2(i) of the final rule adopts the proposed 
    definition of ``new miner'' with minor changes. The final rule defines 
    a new miner as a person who is beginning employment as a miner with a 
    production-operator or independent contractor and who is not an 
    experienced miner. As discussed elsewhere in the preamble, the final 
    rule substitutes the terms ``production-operator or independent 
    contractor'' for the broader term of ``operator,'' to make it 
    consistent with the wording of the definition in the final rule for 
    ``newly hired experienced miner.''
        Newly hired experienced miner. The definition of this term is 
    similar to the definition of ``new miner''. ``Newly hired experienced 
    miner'' was not defined in the proposed rule, but is defined in 
    Sec. 46.2(j) of the final rule as an experienced miner who is beginning 
    employment with a production-operator or independent contractor.
        Commenters questioned whether certain miners, such as those 
    employed by an independent contractor who move from mine to mine, would 
    be considered new miners or newly hired experienced miners. We agree 
    with these commenters that the proposed rule was not clear on this 
    distinction, and the definition of ``newly hired experienced miner'' 
    specifically provides that experienced miners who move from one mine to 
    another, such as drillers and blasters, but who remain employed by the 
    same production-operator or independent contractor are not considered 
    newly hired experienced miners and do not need training under Sec. 46.6 
    of the final rule. However, final Sec. 46.11 specifically requires that 
    these miners receive site-specific hazard awareness training for each 
    mine.
        Normal working hours. Section 46.10 of the final rule, like the 
    proposal, requires that training be conducted during ``normal working 
    hours.'' Final Sec. 46.2(k) adopts the proposed definition of ``normal 
    working hours'' and provides that ``normal working hours'' means a 
    period of time during which a miner is otherwise scheduled to work. 
    This definition is based on a similar provision in part 48 and also 
    provides that the sixth or seventh working day may be used to conduct 
    training, provided that the miner's work schedule has been in place 
    long enough to be accepted as a common practice. This aspect of the 
    proposed rule did not receive much comment, and the final definition is 
    adopted with a minor change from the proposal. The final rule 
    references ``production-operator and independent contractor'' rather 
    than ``operator.'' As discussed earlier, this change is intended to 
    eliminate any confusion that may have been caused by the use of the 
    term ``operator'' in the proposal.
        As discussed under Sec. 46.10 of the preamble, we intend that the 
    schedule must have been in place long enough to provide reasonable 
    assurance that the schedule change was not motivated by the desire to 
    train miners on what had traditionally been a non-work day.
        Comments received on the proposed definition raised the issue of 
    whether travel to an off-site location and the training conducted at 
    that location must be conducted during normal working hours. These 
    issues are addressed under the preamble discussion for final 
    Sec. 46.10.
        Operator. Operator is defined in Sec. 46.2(l) of the final rule to 
    mean both production-operators (defined in this section as owners, 
    lessees, or other persons who operate or control a mine) and 
    independent contractors who perform services at a mine. This definition 
    is consistent with the definition of ``operator'' in section 3(d) of 
    the Act. The term ``operator'' is used throughout the preamble to refer 
    to the person or entities responsible for providing health and safety 
    training under part 46. However, we use the terms ``production-
    operator'' and ``independent contractor'' in the final rule to 
    distinguish between the two
    
    [[Page 53097]]
    
    types of operators and to emphasize that independent contractors also 
    have responsibility for training.
        Production-operator. Final Sec. 46.2(m) defines ``production-
    operator'' as any owner, lessee, or other person who operates, 
    controls, or supervises a mine covered by this part. This would mean 
    the person or entity that actually operates the mine as a whole, as 
    opposed to an independent contractor who provides services. Commenters 
    were generally silent on this aspect of the proposal. This definition 
    is derived from the definition of ``operator'' in section 3(d) of the 
    Mine Act and is adopted without change from the proposal into the final 
    rule.
        Task. Final Sec. 46.2(n) defines ``task'' as a work assignment or 
    component of a job that requires specific job knowledge or experience. 
    The proposal would have defined ``task'' as a component of a job that 
    is performed on a regular basis. One commenter pointed out that a task 
    may or may not be performed on a regular basis and questioned why that 
    limitation was included in the proposed definition. The commenter was 
    concerned that there could be instances where a miner is assigned to 
    perform a task on a one-time basis, but a literal reading of the 
    proposed definition of ``task'' suggests that task training would not 
    be required in such a situation. We agree with this commenter, and the 
    wording in the final rule has been clarified accordingly.
        This definition identifies the type of job duties that would be 
    subject to the new task training requirements under final Sec. 46.7. 
    Under that section, a miner must be provided with training when 
    reassigned to a task for which he or she has no previous experience, or 
    when the miner's assigned task is changed.
        We and us. These terms are adopted in the final rule to refer to 
    the Mine Safety and Health Administration (MSHA). We have written the 
    final rule in the more personal style advocated by the President's 
    executive order on ``plain language,'' which, among other things, 
    encourages the use of personal pronouns. Commenters generally supported 
    the use of plain language in both the regulatory language and the 
    preamble, and ``we'' and us'' are used throughout the final rule and 
    preamble to refer to MSHA.
        You. The final rule, like the proposal, uses the term ``you'' to 
    refer to production-operators and independent contractors, consistent 
    with ``plain language'' concepts. However, a number of commenters 
    indicated that using ``you'' to refer both to production-operators and 
    independent contractors created some confusion. In response to these 
    comments, we have limited our use of ``you'', both in the final rule 
    language and the preamble, to instances where it is unlikely to be 
    misunderstood or unclear.
        The final rule, unlike the proposal, does not include a definition 
    of ``hazard training.'' ``Hazard training'' was defined in the proposal 
    as information or instructions on the hazards a person could be exposed 
    to while on mine property, as well as on applicable emergency 
    procedures. In response to comments, the concepts that were outlined in 
    the proposed definition have been consolidated into final Sec. 46.11, 
    the section of the final rule that specifically addresses site-specific 
    hazard awareness training. A separate definition for ``hazard 
    training'' is not needed as a result, and the proposed definition has 
    not been adopted in the final rule.
    
    Section 46.3  Training Plans
    
        Section 46.3 of the final rule requires production-operators and 
    independent contractors to develop and implement a training plan and 
    also addresses MSHA approval of training plans, how and where a copy of 
    the training plan must be maintained, and who has access to the plan. 
    The requirements of section 46.3 apply to production-operators and 
    those independent contractors who have employees who fit the definition 
    of ``miner'' under final Sec. 46.2. These requirements have been 
    adopted, with some changes, from the proposed rule.
        In developing the final rule, we have attempted to develop 
    practical requirements for health and safety training programs at the 
    wide range of mines covered by part 46. Section 115 of the Mine Act 
    provides that mine operators shall have a health and safety training 
    program that shall be ``approved by the Secretary [of Labor].'' The 
    Mine Act does not set forth a specific method by which we must approve 
    an operator's health and safety training plan. We believe, therefore, 
    that the drafters of the Mine Act intended some flexibility concerning 
    the procedures to be followed by us when implementing MSHA approval of 
    health and safety training plans. We are also mindful that regulatory 
    considerations under section 115 of the Mine Act must be balanced with 
    the congressional intent expressed in section 103(e) of the Mine Act. 
    This provision directs us not to impose an unreasonable burden on mine 
    operators, especially those operating small businesses, when requesting 
    information consistent with the underlying purposes of the Act. As a 
    result, we believe that the Mine Act provides us with the discretion to 
    approve health and safety programs by requiring something other than 
    the operator's submission to us of a proposed training plan.
        While not establishing specific procedures to be followed, Congress 
    did provide minimum requirements in section 115 of the Mine Act to 
    guide us in determining what should be considered an approved health 
    and safety training program. First, we interpret section 115(a) of the 
    Act to require that each operator develop and implement an approved 
    health and safety training program under which miners are provided 
    certain minimum training as specified by section 115. For example, 
    section 115 provides that ``new miners having no surface mining 
    experience shall receive no less than 24 hours of training if they are 
    to work on the surface'' and that any training must be provided 
    ``during normal working hours.'' As a result, an operator's training 
    program can only be approved if the proposed training fulfills the 
    operator's compliance obligations under section 115 of the Act. In 
    addition, we believe that in order for an operator's training program 
    to be approved, it must be in compliance with any minimum requirements 
    established in training standards developed by us in accordance with 
    section 115 of the Act. Accordingly, we believe the Mine Act provides 
    us with the authority to include a requirement in the part 46 final 
    rule that would consider an operator's health and safety training plan 
    to be approved by MSHA without formal submission and review, provided 
    such a plan comports with the minimum requirements of section 115 of 
    the Mine Act as well as the provisions for approved plans set forth in 
    this section of the final rule.
        Once the final rule goes into effect, we intend to have our 
    inspectors review your health and safety training plans at the mine 
    site during the normal inspection cycle. This will be accomplished in a 
    manner similar to how our inspectors review other mine-specific plans 
    for compliance. Inspectors and other MSHA personnel who review your 
    plan would simply determine--
        (1) That you in fact have developed a written training plan;
        (2) That the written plan contains at a minimum the information 
    specified in this section; and
        (3) That the plan is being implemented consistent with the plan 
    specifications.
        Although final Sec. 46.3 allows you greater flexibility in training 
    plan content and implementation, MSHA has determined that the new 
    requirements do not reduce the protection afforded to
    
    [[Page 53098]]
    
    surface nonmetal miners under similar standards in existing part 48. 
    While the means used under part 46 may be more flexible and 
    performance-oriented than part 48, the ultimate result--the effective 
    health and safety training of surface nonmetal miners--will be attained 
    under the new standard. In addition, because miners are in a good 
    position to evaluate the health and safety concerns at their workplace, 
    the final rule includes requirements that provide for the notification 
    and involvement of miners and their representatives in the development 
    of approved training plans before implementation. We also wish to 
    emphasize the enhanced health and safety benefits to miners resulting 
    from final Sec. 46.3, which will allow us to focus our resources on 
    verification of plan execution and assistance to you in providing 
    effective training at your mines, rather than on a paper review and 
    approval of training plans at our offices. Likewise, you and training 
    providers can focus on the development of training plans that address 
    the health and safety concerns at your operation, rather than on 
    traditional procedures to gain our approval.
        Final Sec. 46.3(a) requires production-operators and independent 
    contractors who have employees who are ``miners'' under the final rule 
    to develop and implement a written plan, approved by us under either 
    paragraph (b) or (c) of final Sec. 46.3, that contains effective 
    programs for training new miners and newly hired experienced miners, 
    training miners for new tasks, annual refresher training, and site-
    specific hazard awareness training. We received few comments on this 
    aspect of the proposal, and we have adopted this provision unchanged 
    into the final rule.
        Final Sec. 46.3(b) provides that a training plan is considered 
    approved by us if it contains--
        (1) The name of the production-operator or independent contractor, 
    mine name(s), and MSHA mine identification number(s) or independent 
    contractor identification number(s);
        (2) The name and position of the person designated by you who is 
    responsible for the health and safety training at the mine. This person 
    may be the production-operator or independent contractor;
        (3) A general description of the teaching methods and the course 
    materials that are to be used in each training program, including the 
    subject areas to be covered and the approximate time to be spent on 
    each subject area;
        (4) A list of the persons and/or organizations who will provide the 
    training, and the subject areas in which each person and/or 
    organization is competent to instruct; and
        (5) The evaluation procedures used to determine the effectiveness 
    of training.
        Plans that include the information listed in this section are 
    considered ``approved,'' and you are not required to submit the plan to 
    us for traditional review and approval. The required information is 
    virtually the same information that would have been required by the 
    proposal, with a few minor changes, explained below.
        A number of commenters supported the proposed guidelines for plan 
    content, emphasizing the wide variety in size and type of mining 
    operations falling under part 46 requirements. These commenters stated 
    that the most effective training plans are those that can be tailored 
    to the particular operation, directed toward specific mine processes or 
    hazards or on the accident and injury experience at the mine. These 
    commenters favored the latitude that the proposed rule would give 
    production-operators and independent contractors in developing training 
    programs.
        A number of commenters addressed the minimum information that the 
    proposal would require in the operator's written training plan. One 
    commenter believed that it was unnecessary for the training plan to 
    specify the approximate time that would be spent on a particular 
    subject and recommended that the final rule not require it. This 
    commenter contended that the time spent on a particular topic is unique 
    to the persons attending a specific training session, because different 
    groups learn at different rates.
        Commenters questioned the need for the plan to include the name of 
    the persons providing the training and the subjects in which they are 
    competent to instruct. These commenters recommended that the final rule 
    not require this information. Other commenters contended that requiring 
    instructors to be identified suggests that all training under part 46 
    must be provided in a classroom setting and recommended that the final 
    rule clarify that operators can use alternative and innovative training 
    methods as well as classroom training.
        As stated in the preamble to the proposal, our intention is that 
    the information that operators must include in their training plans 
    will be sufficient to allow us to make a determination of your 
    compliance with training plan requirements, without imposing an 
    unnecessary paperwork or recordkeeping burden. Additionally, the 
    training plan serves as an essential framework for the operator's 
    training programs. We expect that operators will direct adequate time 
    and resources to the development of their training plans. We intend 
    that the flexible written plan requirements in the final rule will 
    allow operators to devote the time saved from the reduction in 
    administrative burden to be directed towards development of their 
    training programs. Although part 46 gives operators flexibility in 
    designing their training programs and attempts to minimize paperwork 
    burdens, we do not intend that part 46 allow operators to deliver 
    training to miners on an ad hoc basis. Although we strongly encourage 
    operators to tailor their training programs to the needs of their 
    particular operations, this does not mean that we advocate that 
    operators change fundamental components of their miner training 
    programs from one day to the next, at their convenience.
        We do not believe that it is unduly burdensome to require operators 
    to indicate the approximate amount of time that will be spent on a 
    particular subject area. As a practical matter, operators must 
    determine how much time will be spent on a particular subject as part 
    of the development of an effective training program. We would point out 
    that the final rule, like the proposal, requires that the 
    ``approximate'' amount of time spent on a particular subject be 
    included in the training plan. This provides operators with some leeway 
    in organizing their training and also addresses the concern of one 
    commenter that different groups learn at different rates of speed. For 
    example, if an annual refresher training program includes a course in 
    traffic hazards, the training plan could indicate that the course will 
    last over a specified range of time, such as from one to two hours. For 
    the same reasons, requiring a list of competent persons who will 
    provide training is not unreasonably limiting. It would be acceptable 
    under the final rule for the operator to include names of all potential 
    instructors in a particular subject, even though the course will 
    ultimately be taught by only one of the instructors listed. Further, we 
    disagree with commenters who contend that requiring a list of 
    instructors suggests that training must be conducted in a classroom 
    setting. In fact, final Sec. 46.4(d) specifically provides that 
    training methods may consist of classroom instruction, instruction at 
    the mine, interactive computer technology or any other innovative 
    training methods, alternative training technologies, or any combination 
    of methods. Additionally, we believe that the final rule's requirements 
    are sufficiently flexible to allow operators to
    
    [[Page 53099]]
    
    readily address new or emerging health and safety concerns at their 
    operations. For these reasons, we have not adopted these commenters' 
    recommendations in the final rule.
        Several commenters expressed concern that several of the 
    informational requirements in Sec. 46.3(b) were inappropriate and too 
    restrictive for new task training and site-specific hazard awareness 
    training. Some of these commenters indicated that it was unrealistic to 
    require an operator to foresee all of the types of task and hazard 
    awareness training that may be needed for all job categories and to 
    write them up in the plan. One commenter stated that an operator needs 
    the flexibility to offer such training by the most qualified person 
    available at the time the training is to be conducted, and that 
    requiring an operator to indicate the identity of the competent person 
    who will provide this training in the plan will restrict this 
    flexibility. These commenters also contended that evaluation of 
    training effectiveness, particularly hazard awareness training for 
    vendors and visitors, would be difficult to accomplish without the 
    needed flexibility. These commenters therefore recommended that the 
    required documentation of site-specific hazard awareness training and 
    new task training be limited to a statement of the training objectives 
    and the method of instruction.
        We disagree that the plan information included in the proposed rule 
    and adopted into the final rule is unduly restrictive for new task and 
    hazard awareness training. As discussed above, it would be acceptable 
    for an operator to include a list of potential instructors for a 
    particular subject in the training plan, even though only one of the 
    instructors will actually end up providing the training. Additionally, 
    most operations covered by the final rule are small and typically 
    operate with limited equipment, and the number of new tasks miners at 
    these mines will be assigned is also limited. Including a list of these 
    tasks in the training plan would not impose an unreasonable burden on 
    production-operators and independent contractors at many mines. As 
    mentioned above, the plan could identify several potential instructors 
    for training in a particular task. Similarly, the plan could summarize 
    the site-specific hazard awareness training that will be given based on 
    the type of worker who will receive it. For example, the type of hazard 
    awareness training given to independent contractors who are at the mine 
    site to repair mining equipment would most likely differ in scope and 
    content from the training given to truck drivers who come onto the mine 
    site for brief periods to deliver supplies. The plan should provide a 
    description of the training that will be given to different categories 
    of workers. We believe that the final rule language affords operators 
    adequate flexibility with regard to task and site-specific hazard 
    awareness training. Consequently, we have not adopted the 
    recommendation of these commenters that the final rule reduce the plan 
    information requirements for these types of training.
        One commenter pointed out that if an operator arranges with an 
    outside organization to provide some or all of the required training, 
    the operator probably will not know the names of the instructors from 
    the training organization who will provide the training. For these 
    reasons, this commenter asserted, it would not be possible for the 
    operator to indicate the names of the instructors in the training plan. 
    We agree that in such situations production-operators or independent 
    contractors will be unable to indicate the specific instructors who 
    will provide training. We also agree that it is appropriate to allow 
    flexibility in these cases. The final rule therefore provides that the 
    plan may indicate the person or organization that will provide the 
    training, as appropriate. This means, for example, if a production-
    operator or independent contractor arranges for some portion of part 46 
    training to be provided by XYZ Training Company, the plan may simply 
    indicate that an instructor from that company will provide training in 
    specified areas. You should be aware, however, that final Sec. 46.9 
    requires that the training records and certificates for this training 
    indicate the name of the person who provided the training. Obviously, 
    the identity of the instructor will be known at the time that the 
    training is provided, and recording this information should present no 
    problem to the production-operator or independent contractor.
        One other commenter questioned the use of certain terms in the 
    proposal, and asked whether there was a difference between a training 
    ``plan'' and a training ``program.'' This commenter observed that the 
    proposal provided that the training plan must cover five different 
    programs--(1) New miner training; (2) newly hired experienced miner 
    training; (3) annual refresher training; (4) new task training; and (5) 
    site-specific hazard awareness training. Each training program is in 
    turn made up of one or more courses, with each course covering a 
    subject area. This commenter suggested that if his observation is 
    correct, then the information in paragraphs (b)(1) through (b)(5) 
    should be required for each training ``program,'' not each training 
    ``plan.''
        This commenter's understanding of the scheme of the plan 
    requirements is correct. In response to this comment, we have made a 
    minor change in paragraph (b)(3). The final rule requires that the plan 
    include a general description of the teaching methods and the course 
    materials that are to be used in each ``training program.'' If the 
    operator is using the same teaching methods and course materials for 
    all programs, the operator need not describe each individually but may 
    simply state that methods and materials will be used for all programs. 
    The proposal would simply have required that this description be 
    provided for methods and materials used in ``providing the training.''
        We have also made small clarifications in final Sec. 46.3(b)(1). 
    Instead of requiring the ``company'' name, as under the proposal, the 
    final rule requires the ``name of the production-operator or 
    independent contractor.'' This paragraph now also references the MSHA 
    independent contractor identification number in addition to the MSHA 
    mine identification number. This is intended to be consistent with the 
    fact that both production-operators and independent contractors with 
    employees who are miners under the final rule are responsible for 
    developing training plans for their employees. Section 46.3(b)(1) also 
    indicates that there may be multiple mine names and MSHA identification 
    numbers indicated on a plan. This may be true in cases where a 
    production-operator operates several mines and has one training plan 
    that covers all of the mines. Additionally, independent contractors 
    typically provide services at multiple mines, and the language of the 
    final rule addresses those instances where a training plan is relevant 
    for more than one mine.
        The final rule, like the proposal, requires you to list or describe 
    the evaluation procedures that you will use to determine the 
    effectiveness of training. Evaluation of the effectiveness of training 
    must be an integral part of the training process if accidents, 
    injuries, and deaths resulting from unsafe conditions and work 
    practices are to be reduced. We have retained a performance-oriented 
    approach that allows you to select the method that you will use to 
    determine that training has been effective. Possible evaluation methods 
    include administering written or oral tests to miners, or a 
    demonstration by a miner that he or she can perform all required duties 
    or tasks
    
    [[Page 53100]]
    
    in a safe and healthful manner. You could also evaluate work practices 
    to ensure that the miner retains and uses the skills, knowledge and 
    ability to perform his or her duties safely. This evaluation could be 
    accomplished by periodic work observations to identify areas where 
    additional training may be needed. In addition, such observations, 
    along with feedback from miners, could be used to modify and enhance 
    the training program.
        The final rule, like the proposal, uses the term ``effective 
    programs'' to deal with instances where a training plan, as 
    implemented, is inadequate or deficient. If we determine that you have 
    not implemented an effective training program, we will issue a citation 
    for a violation of Sec. 46.3(a) that indicates how and why the training 
    program fails to meet this requirement. In cases where the plan as 
    designed falls short in some way, you must revise your plan to address 
    the deficiencies that we have identified to abate the violation. In 
    cases where the plan as designed is adequate but the plan is 
    inadequately implemented, you must take steps to improve the quality of 
    the implementation of the plan. In some cases, you may need both to 
    revise your plan and address inadequacies in implementation. For 
    example, if you have designated an individual as a ``competent person'' 
    who in fact is incompetent to instruct, you must designate someone else 
    to provide training as well as revise your plan to include the new 
    competent person.
        Under final section 46.3(a), production-operators and independent 
    contractors are responsible for maintaining an effective training plan 
    at all times at their operation. As a result, it will be necessary for 
    production-operators and independent contractors to monitor the 
    implementation of training plans to determine whether it is effective 
    and therefore in compliance with section 46.3(a) of the standard. We 
    expect production-operators and independent contractors to modify 
    ineffective or deficient segments of their training plan in order to 
    bring them into compliance.
        The final rule reflects our determination that, while our review of 
    your written training plan could provide an initial check on the 
    quality of the written program, such review does not ensure that the 
    program is successful in its implementation. This is the same approach 
    taken in the proposal and was the subject of a number of comments. A 
    number of commenters favored the implicit approval of a training plan 
    that meets the minimum requirements in the rule, believing that this 
    approach would allow operators to direct the time saved from the 
    streamlined administrative process towards better plans and plan 
    implementation. On the other hand, some commenters recommended that we 
    maintain oversight of training plans through the plan submission and 
    review process, to ensure that plans meet minimum standards of quality.
        The final rule adopts the approach taken in the proposal, and 
    provides that a training plan is considered approved by us if it 
    includes the minimum information specified in this section. This 
    reflects our conclusion that it is not necessary for production-
    operators and independent contractors to formally submit their training 
    plans to us to achieve the protective purposes of the Mine Act. We 
    believe that a training program can be effective if the operator 
    develops and implements a health and safety training plan consistent 
    with the requirements for an approved plan under this final rule. As we 
    have indicated elsewhere in this preamble, we will provide compliance 
    assistance to operators in developing effective training plans as our 
    resources permit and will develop sample training plans that operators 
    can use as the basis for their own mine-specific plans. Additionally, 
    we will direct our resources toward verification of the effectiveness 
    of training plans in their implementation. Similarly, operators and 
    training instructors will be able to focus on the development and 
    administration of training plans tailored specifically to mine 
    operators' needs rather than on traditional procedures to gain our 
    approval.
        The final rule adopts the proposed rule's alternate process for 
    plan approval, for those cases where a plan you develop does not 
    include the minimum required information, where you choose to obtain 
    traditional approval, or where the miners or miners' representative 
    requests such approval. Final Sec. 46.3(c) provides that a plan that 
    does not include the minimum information listed in paragraphs (b)(1) 
    through (b)(5) must be submitted for review and approval by the 
    Educational Field Services Division Regional Manager, or designee, for 
    the region in which the mine is located. The term ``Regional Manager'' 
    refers to the Regional Manager in the Educational Field Services 
    Division (EFS) of MSHA's Directorate of Educational Policy and 
    Development (EPD). The EFS Division is divided into an Eastern and a 
    Western region. In response to requests from the mining community, the 
    responsibility for the approval of training plans was moved from 
    District Managers in Coal and Metal and Nonmetal Mine Safety and Health 
    to the EFS Regional managers or their designees in 1997. Paragraph (k) 
    of this section includes the titles, postal and e-mail addresses, and 
    facsimile and telephone numbers of both EFS Managers.
        We anticipate that the majority of plans developed under this part 
    will satisfy the requirements of paragraph (b) and consequently will 
    not be required to be submitted to us for traditional approval. 
    However, final Sec. 46.3(c) allows you to voluntarily submit a training 
    plan for Regional Manager approval. We expect that some of you may 
    prefer to obtain our traditional approval to ensure that there is no 
    question that your training plan satisfies minimum requirements. This 
    aspect of the final rule addresses those concerns. Only a few 
    commenters addressed this aspect of the proposal, and these commenters 
    were generally supportive of it. One commenter endorsed voluntary 
    submission of training plans to us and predicted that it would be used 
    by many mine operators.
        Final Sec. 46.3(c), like the proposal, also allows miners and their 
    representatives to request our traditional approval if they choose. 
    Several commenters were opposed to this provision, contending that it 
    was unnecessary and potentially burdensome and could be subject to 
    abuse. One commenter was concerned that a single request from a miner 
    or a miners' representative could trigger our traditional review of a 
    plan. This commenter maintained that miners and their representatives 
    have direct and effective recourse if they believe a training plan is 
    inadequate--they can contact us and request that the plan be reviewed 
    by an MSHA inspector. This commenter was of the opinion that the 
    possibility that the inspector may cite the operator for an inadequate 
    plan is a strong incentive for compliance, and that it was therefore 
    unnecessary to give miners the right to request MSHA review of a 
    training plan.
        We disagree with those commenters who believe that miners' 
    participation in the plan development and approval process is 
    unnecessary. The Mine Act explicitly recognizes that miners have an 
    important role in assisting mine operators in preventing unsafe and 
    unhealthful conditions and practices in the nation's mines. The final 
    rule appropriately allows miners and their representatives the right to 
    request MSHA review of operators' training plans within two weeks of 
    receiving the proposed plan from the mine operator in accordance with 
    paragraph (e). The final rule clarifies the intent of the proposal that 
    miners and their
    
    [[Page 53101]]
    
    representatives must request MSHA approval within the two-week period 
    allowed for their review. The proposal was silent on when miners and 
    their representatives must request MSHA approval, and the final rule 
    addresses this omission.
        Contrary to the assertions of some commenters, we believe that 
    miners should have a role in the process before the plan is 
    implemented. We encourage operators to involve the miners at their 
    mines as much as possible in the plan development process and solicit 
    miners' input in determining the subject areas to be covered and 
    emphasized in the various training programs.
        In most cases, we anticipate that miners and their representatives 
    will bring concerns they may have about the training plan to your 
    attention and that any concerns that miners or their representatives 
    have will be resolved informally. However, there may be occasions when 
    attempts at informal resolution of issues raised by miners or their 
    representatives are unsuccessful. For these reasons, the final rule 
    provides a mechanism for our direct involvement to resolve issues or 
    concerns on the part of the miners or their representatives that cannot 
    be resolved informally.
        The proposed rule provided miners and their representatives the 
    right to request MSHA review of operators' training plans. However, 
    commenters questioned how an operator would know that miners or their 
    representatives had requested MSHA review of the operator's plan or, 
    conversely, how miners and their representatives would know if the 
    operator requested MSHA review. The proposed rule was silent on these 
    issues. To address these concerns, we have included additional 
    notification requirements in the final rule. The final rule requires 
    miners or their representatives to notify the production-operator or 
    independent contractor when they request our approval of the training 
    plan. In addition, the final rule also requires you to notify the 
    miners or miners' representative when you request our approval of your 
    training plan. The final rule does not specify how this notice must be 
    given. We expect that, in most cases, the party requesting MSHA 
    approval will provide a copy of the request to the operator or the 
    miners' representative, as appropriate. Where an operator requests MSHA 
    approval and there is no designated miners' representative, posting of 
    the request on the mine bulletin board would satisfy this requirement. 
    These provisions will ensure that affected parties are informed when a 
    training plan is submitted to MSHA for review and approval.
        Section 46.3(d) of the final rule, like the proposal, requires you 
    to furnish the miners' representative, if any, with a copy of the 
    training plan at least two weeks before the plan will be implemented 
    or, if you request MSHA approval of your plan, at least two weeks 
    before you submit the plan to the EFS Regional Manager for approval. At 
    mines where no miners' representative has been designated, a copy of 
    the plan must either be posted at the mine or a copy provided to each 
    miner at least two weeks before the plan will be implemented or 
    submitted to the Regional Manager for approval. This ensures that 
    miners and their representatives are notified of the contents of your 
    training plan before the plan goes into effect or is submitted to us 
    for approval. This also provides them with an opportunity to comment on 
    the proposed plan and suggest additions or improvements. This aspect of 
    the proposal received little comment and has been adopted without 
    change into the final rule.
        We recognize that at many mines, particularly small operations, 
    there may be no miners' representative, and the mine may also lack a 
    mine office and therefore have no appropriate place for posting the 
    plan. Therefore, the final rule, like the proposal, allows an 
    alternative method for notifying miners of proposed training plan 
    contents. Under the final rule, operators may provide a copy of the 
    plan to each miner in lieu of posting.
        Final Sec. 46.6(e) gives miners and their representatives two weeks 
    after the posting or receipt of the proposed training plan to submit 
    comments on the plan to you, or to the Regional Manager if the plan is 
    before the Manager for approval. This provision has been adopted 
    unchanged from the proposal. This will provide miners and their 
    representatives with a means to provide input on the training plan, 
    either to you, if traditional approval is not being sought, or to the 
    Regional Manager who is reviewing and approving the plan. This aspect 
    of the proposal received little comment. Although some commenters 
    questioned allowing miners and their representatives to request MSHA 
    review and approval of an operator's training plan, no commenters took 
    issue with giving miners and their representatives the opportunity to 
    comment on a plan.
        Final Sec. 46.3(f) provides that the Regional Manager must notify 
    you and miners or their representative, in writing, of the approval or 
    the status of the approval of the training plan within 30 days of 
    receipt of a training plan submitted to us for approval, or 30 days 
    from the receipt of the request by the miner or miners' representative 
    that we review and approve the plan. This requirement has been adopted 
    with minor changes from the proposal and ensures that affected parties 
    are notified of the status of our review of the training plan.
        This aspect of the proposal received little comment. The proposed 
    rule did not specify that the 30-day notification requirement would be 
    triggered by a request by miners or their representatives for our 
    review and approval of the plan, but the final rule clarifies this 
    point. Additionally, the proposed rule would have provided that the 
    notice be given within 30 days of the plan submission by the operator 
    or the request for approval by miners or their representatives. We have 
    modified the final rule slightly from the proposal to provide that the 
    30 day time period will begin to run upon our receipt of the submission 
    or request. This small change will make it easier for us to track and 
    fulfill this notification requirement.
        As indicated earlier in this preamble, we anticipate that many of 
    you will not seek our traditional approval of your training plans, and 
    that in most cases concerns of miners or their representatives will be 
    resolved informally. In those limited cases where we become directly 
    involved in approval of a plan, we intend for the Regional Manager to 
    provide reasonable notice to you and miners or their representatives of 
    the status of plan approval or perceived deficiencies in the plan. The 
    notice will also provide parties with a reasonable opportunity to 
    express their views or offer solutions to the problem, without the need 
    for detailed procedures.
        A few commenters raised the issue of whether an operator could go 
    ahead and implement a proposed plan pending formal approval by MSHA, in 
    cases where the plan includes the minimum information required by 
    Sec. 46.3(b). These commenters maintained that an operator should not 
    have to delay implementation of safety-related changes while a plan is 
    undergoing review. One commenter also questioned whether a plan would 
    be deemed approved if the 30-day deadline has passed and we have not 
    made a final decision on approval.
        Although we agree with commenters that improvements in training 
    plans should be implemented as quickly as possible, we do not agree 
    that the final rule should allow operators to implement plans that are 
    before us for review and approval but that we have
    
    [[Page 53102]]
    
    not yet approved. To allow pre-approval implementation could make the 
    approval process meaningless. In addition, such a provision would be 
    inconsistent with the approval procedures contained in other MSHA 
    regulations. Miners or miners' representatives who submit comments will 
    expect MSHA to act on their concerns in the same manner that we do in 
    other regulations. In other regulations a plan does not go into effect 
    until we approve it. We assume that operators who are anxious to 
    implement improved training plans would not seek our traditional review 
    and approval of the plan in the first place, so this would not be an 
    issue. Consequently, the situation referred to by commenters would most 
    likely arise where the miner or miners' representative has requested 
    our review and approval of the plan. We expect that a miner or miners' 
    representative will request our review and approval because there is 
    some concern or disagreement about one or more elements of the plan and 
    the adequacy or effectiveness of the plan as proposed. In such cases, 
    we believe that we should address the concerns or resolve the 
    disagreement before the operator implements the plan. Similarly, we are 
    not in favor of a provision that would deem a plan ``approved'' after a 
    certain period of time has passed. Such a provision could mean that the 
    concerns of miners or their representatives would not be addressed or 
    considered through no fault of their own. We believe that this would be 
    an unfair result, and we have not adopted such a provision in the final 
    rule. We will direct our resources to ensure that we review the plans 
    before us for approval as quickly as possible. We are committed to 
    expeditious review, approval, and implementation of operators' training 
    plans. For these reasons, the final rule does not allow plans to be 
    implemented that are before us for review but that we have not yet 
    approved.
        The requirements of Sec. 46.3(g) are new to the final rule, and we 
    have included them in response to comments. This new paragraph (g) will 
    only apply if you submit a plan to MSHA for approval. Under this 
    paragraph, you must provide the miners' representative, if any, with a 
    copy of the approved plan within one week after approval. At mines 
    where no miners' representative has been designated, you must post a 
    copy of the plan at the mine or provide a copy of the plan to each 
    miner within one week after approval. This responds to commenters who 
    were concerned that the proposed rule did not specifically provide that 
    operators must provide miners or their representatives with copies of 
    the approved training plan.
        Section 46.3(h) of the final rule, like the proposal, provides you, 
    miners, and miners' representatives the right to appeal the EFS 
    Regional Manager's decision on a training plan to the Director for 
    Educational Policy and Development. A Regional Manager's decision on a 
    plan will be reviewed on appeal by the Director for EPD. Under this 
    paragraph, an appeal must be submitted in writing within 30 days after 
    notification of the Regional Manager's decision on the training plan. 
    The Director for EPD will issue a decision on the appeal within 30 days 
    after receipt of the appeal. We anticipate that this provision will be 
    rarely used and expect that when a disagreement arises between us, you, 
    and miners and their representatives about plan design or content, it 
    can be resolved without the need for intervention of the Director for 
    EPD. However, in those rare cases where the parties are unable to come 
    to terms on the content of a particular training plan, the final rule 
    provides parties the option of seeking review by the Director for EPD 
    of the Regional Manager's decision on a plan. As indicated, parties 
    have 30 days in which to file a written appeal of the Regional 
    Manager's decision on a plan, and the Director for EPD has 30 days from 
    the date of receipt of the appeal to reach a decision. This aspect of 
    the proposal received little comment and is adopted without change into 
    the final rule.
        Final Sec. 46.3(i), like the proposal, requires you to make 
    available at the mine site a copy of the current training plan for 
    inspection by us and for examination by miners and their 
    representatives. If the training plan is not maintained at the mine 
    site, you must have the capability to provide the plan upon request to 
    us, the miners, or their representatives. Although the proposed rule 
    was silent as to how quickly you must provide the plan upon request, 
    the final rule specifies that the plan must be provided within one 
    business day of the request. Under the final rule, you have the 
    flexibility to maintain your training plan at a location other than the 
    mine site, provided that you are able to produce a copy of the plan 
    upon request to our inspectors or miners and their representatives 
    within one business day.
        Many commenters supported allowing the training plan to be 
    maintained at a location away from the mine, observing that many small 
    mines do not have a formal office. Commenters stated that flexibility 
    in recordkeeping for these mines was appropriate. However, a few 
    commenters recommended that a copy of the plan be kept at the mine 
    site, even if it is in the glove compartment of the supervisor's truck. 
    As indicated in the preamble discussion of final Sec. 46.9, addressing 
    recordkeeping requirements, we recognize that many operations covered 
    by the final rule do not have facilities suitable for extensive 
    recordkeeping. Additionally, Sec. 103(e) of the Mine Act directs the 
    Secretary of Labor not to impose an unreasonable burden on mine 
    operators, especially those operating small businesses, when requesting 
    information consistent with the underlying purposes of the Act. For 
    these reasons, we have concluded that it is appropriate to allow mine 
    operators some flexibility in maintaining their training plans. The 
    final rule, like the proposal, allows you to maintain your training 
    plan at a location other than at the mine site, provided that you can 
    produce a copy upon request by us or miners or their representatives. 
    Unlike the proposal, the final rule includes a deadline of one business 
    day after the request for you to provide a copy of the plan. In the 
    proposal, we solicited comments on whether the final rule should 
    specify a deadline for an operator to produce a plan after a request 
    has been made. A number of commenters recommended a deadline of one 
    business day. We agree with these commenters that this would be 
    reasonable, given the wide availability of overnight mail, electronic 
    mail, and fax machines, and we have adopted this deadline in the final 
    rule.
        The requirements of Sec. 46.3(j) have been added to the final rule 
    in response to comments. Under this paragraph, you must follow the plan 
    approval procedures of this section whenever you revise your training 
    plan. In the preamble to the proposal, we indicated our intent that a 
    training plan that underwent significant revisions would be required to 
    go through the approval process of this section, just as though it was 
    a new plan. However, the proposed rule did not include language that 
    would have required this. A number of commenters strongly recommended 
    that we include a provision in the final rule that addressed this.
        Several commenters questioned what the process should be when 
    operators revise their training plans. One commenter indicated that 
    obtaining formal MSHA approval every time a training plan is amended is 
    a tedious task that in no way relates to protecting workers. Other 
    commenters recommended that operators be allowed to easily revise the 
    plan when changing information such as the time spent on
    
    [[Page 53103]]
    
    a particular subject or on the emphasis given to particular training 
    subjects. These commenters indicated that refresher training needs to 
    be flexible as operators determine the subjects that need to be 
    emphasized within the workforce, and that the training plan should not 
    have to be changed each time such adjustments are made. Other 
    commenters questioned whether adding a new subject to the task training 
    program would necessitate a modification of the training plan and 
    reposting the plan or resubmitting the plan to MSHA for reapproval.
        We agree with those commenters who believe that it would be unduly 
    burdensome to require operators to obtain traditional MSHA approval of 
    their training plans even when they make minor revisions to their 
    training plan. We attempted to develop a reasonable definition of 
    ``significant revision,'' so that it would be clear what type of 
    revisions would require an operator to go through the approval process. 
    However, we concluded that what constitutes a ``significant revision'' 
    is extremely subjective and incapable of definition. For example, many 
    people would probably not consider the addition or deletion of one or 
    two training subjects from a training program to be a significant 
    revision of the plan. However, in limited cases, particular subjects 
    may be of concern to miners at the mine, and the miners may consider 
    minor changes to the subjects covered by a plan significant. Changes in 
    training methods or course materials may be of little consequence in 
    most situations. On the other hand, a change from primarily classroom 
    training to interactive computer-based training could be considered a 
    significant change by the miners who will be receiving the training, 
    and they should be notified of this change and have the opportunity to 
    provide input. Because one type of revision may be significant in one 
    set of circumstances but not particularly significant in another 
    situation, we are reluctant to define ``significant revision'' in the 
    final rule. We are concerned that if the final rule were to define the 
    term, there may be instances where a change may not fall within the 
    definition, but nonetheless is something that miners or their 
    representatives would want to be notified of and have the opportunity 
    to comment on. For these reasons, the final rule requires you to follow 
    the procedures for approval in Sec. 46.3 whenever you make a revision 
    to your training plan, including posting or providing copies of the 
    proposed plan to miners, or submitting the plan to us for review and 
    approval.
        We anticipate that operators who make minor revisions to their 
    plans will follow the informal plan approval procedures in final 
    Sec. 46.3(b) rather than request our traditional approval under 
    Sec. 46.3(c), even if we have formally approved previous versions of 
    your training plan. Obtaining traditional MSHA approval of your plan 
    does not lock you into the traditional approval procedures hereafter. 
    We expect that when you make minor changes to your plan miners or their 
    representatives will have limited comments on the revisions. However, 
    this process will ensure that miners are notified of plan changes that 
    may appear unimportant, but that represent significant changes to the 
    miners who are trained under the plan.
        The provisions of final Sec. 46.3(k) are new to the final rule and 
    include the postal and e-mail addresses, phone numbers, and fax numbers 
    of the Eastern and Western Regional Managers for our Educational Field 
    Services Division. The information is included in the final rule as a 
    convenience to mine operators, miners, and miners' representatives who 
    wish to contact EFS representatives, submit training plans to those 
    offices for review and approval, or obtain information or assistance 
    from MSHA on miner training issues. We have also provided the address 
    of MSHA's Internet Home Page to allow those of you with access to the 
    Internet to obtain current information about the EFS organization.
        In the preamble to the proposal, we requested comment on whether we 
    should include sample training plans as a nonmandatory appendix to the 
    final rule. As indicated under the discussion in this preamble on 
    implementation of the final rule, we have concluded that placing sample 
    training plans in a regulatory appendix could restrict our flexibility 
    in making future refinements and improvements to the sample plans. 
    Instead, we will provide operators with sample plans as part of an 
    overall compliance assistance and outreach effort for the mining 
    community. To assist the mining community in complying with the 
    training plan requirements in the final rule, we will post sample plans 
    on our Internet Home Page at www.msha.gov. These plans can serve as the 
    basis for operators' training plans tailored to their specific 
    operations. Additionally, we are currently developing an interactive 
    computer-based program that will assist operators in developing 
    training plans appropriate for their specific operations.
    
    Section 46.4  Training Plan Implementation
    
        Section 46.4 of the final rule, which has been adopted with minor 
    changes from the proposal, requires that training given under this part 
    be consistent with the written training plan required under Sec. 46.3 
    and be presented by a competent person. Under this section, training 
    may be provided by outside instructors and may include the use of 
    innovative training methods. This section also allows credit for 
    equivalent training, provided to satisfy the requirements of the 
    Occupational Safety and Health Administration (OSHA) or other federal 
    or state agencies, to satisfy part 46 requirements. Finally, Sec. 46.4 
    permits short health and safety talks and other informal instruction to 
    satisfy training requirements under this part.
        Although Sec. 46.4 of the final rule will allow operators greater 
    flexibility in training instruction and implementation, MSHA has 
    determined that the new requirements will not reduce the protection 
    afforded to surface nonmetal miners under similar standards in existing 
    part 48. The flexibility included within final Sec. 46.4, permitting 
    the option of presenting training in short durations and in various 
    formats, will allow miners to more easily retain information and 
    receive effective training in close proximity to their work and 
    associated hazards. Additional health and safety benefits will result 
    from the specific requirement in final Sec. 46.4(a)(3), which provides 
    that training must be presented in language understood by the miners 
    who are receiving the training.
        This section was originally entitled ``Training Program 
    Instruction.'' However, one commenter, who supported our use of plain 
    language in the proposal, suggested that a clearer and more appropriate 
    title for this section would be ``Training Plan Implementation,'' given 
    that this section addresses various aspects of plan implementation. We 
    agree that suggested title is more descriptive and makes the final rule 
    easier to understand, and we have adopted the commenter's suggestion in 
    the final rule.
        Section 46.4(a)(1) of the final rule, like the proposal, requires 
    that training provided under part 46 be conducted in accordance with 
    the written training plan. No commenter addressed this aspect of the 
    proposal, and it has been adopted without change into the final rule. 
    This provision makes clear that training given to miners to satisfy the 
    requirements of this part must be consistent with the training programs
    
    [[Page 53104]]
    
    outlined in your plan and the information included in the plan, such as 
    course content and listed instructors.
        Paragraph (a)(2) of final Sec. 46.4 provides that the training must 
    be presented ``by a competent person.'' A number of commenters 
    recommended that the final rule allow training to be given ``under the 
    direction of'' a competent person, to address those situations where a 
    miner may receive training through an interactive computer program 
    rather than through traditional face-to-face training from a live 
    instructor. These commenters stated that this language would be 
    consistent with the use of state-of-the-art training technologies that 
    now exist and would give needed flexibility for the use of other 
    training methods that may be developed in the future, where live 
    instructors may not directly provide training to miners. Some of these 
    commenters also indicated that inclusion of the suggested language in 
    the final rule would allow other individuals to assist the competent 
    person in providing training, even though those persons may not 
    themselves meet the definition of ``competent person.''
        Although we agree with commenters that instructors should have the 
    flexibility to use a wide variety of training methods and technologies 
    in providing training under the final rule, we believe that the 
    language proposed allows sufficient flexibility to use new and 
    innovative training methods, and we have not adopted the recommendation 
    of commenters on this issue. As we indicated in the preamble to the 
    proposed rule, we strongly encourage the use of computer-based and 
    other innovative training methods, where a ``competent person'' would 
    facilitate the delivery of training rather than provide it directly. 
    Section 46.4(d) of the final rule specifically allows the use of these 
    types of training methods in part 46 training. However, we are 
    concerned that if the final rule specified that training may be 
    provided ``under the direction of'' a competent person, some operators 
    could wrongly interpret it to mean that computer-based or any other 
    type of electronic or interactive training method could serve as a 
    total substitute for a human instructor and human interaction under 
    part 46. We consider computer-based or other interactive training 
    technologies to be training ``methods,'' to be employed by an 
    instructor effectively and appropriately.
        We disagree with those commenters who believed that the language of 
    the final rule should be amended to allow other individuals to assist 
    the competent person in providing training, even though those persons 
    may not themselves meet the definition of ``competent person.'' As a 
    practical matter, a person who does not meet the definition of 
    ``competent person'' does not have the minimum qualifications to 
    provide effective training. The final rule does not allow such a person 
    to instruct miners, even if under the oversight or direction of a 
    competent person.
        Like the proposal, the final rule does not require our approval of 
    training instructors, but instead provides that training be given to 
    miners by a ``competent person.'' ``Competent person'' is defined in 
    final Sec. 46.2 as a person designated by the production-operator or 
    independent contractor who has the ability, training, knowledge, or 
    experience to provide training to miners in his or her area of 
    expertise. Additionally, under this definition, the competent person 
    must be able both to effectively communicate the training subject to 
    miners and to evaluate whether the training is effective. The 
    definition of ``competent person'' is addressed in greater detail under 
    the preamble discussion of Sec. 46.2, the section that contains 
    definitions of terms used in the final rule.
        Many commenters supported the proposed requirements for training 
    instructors, stating that the final rule should neither impose rigid 
    minimum requirements for instructors nor require MSHA approval of 
    instructors. Several commenters indicated that the flexibility of the 
    proposed provisions would allow operators to have access to more than 
    adequate resources to ensure quality training for miners. Other 
    commenters stated that the approach taken in the proposal would 
    minimize unnecessary administrative burdens on mine operators and allow 
    them to focus their efforts on the effectiveness of their training 
    programs. Commenters maintained that this would allow operators to 
    utilize the best training available, without worrying about whether the 
    instructor has obtained formal approval from MSHA to provide the 
    training. Other commenters stated that operators are in the best 
    position to judge who can most effectively provide required training. 
    One commenter stated that a formal instructor approval program would 
    unnecessarily tie the hands of operators in crafting effective, 
    specifically tailored training programs and would be unlikely to have a 
    significant positive effect on the quality of training delivered. Still 
    others asserted that it is impractical to require certification of 
    instructors, given the widely dispersed operations in the aggregates 
    industry.
        Several commenters observed that certifying an individual as an 
    instructor does not guarantee that the person knows how to teach. 
    Instead, commenters asserted that instructors should be judged on the 
    basis of the effectiveness of the training they provide, not on their 
    paper credentials. Along the same lines, one commenter noted that an 
    individual with knowledge and experience in a particular subject may 
    not be an outstanding speaker in the public arena, but nonetheless can 
    be more effective in conveying information than an MSHA-approved 
    instructor. One commenter favored the flexibility in the proposed rule, 
    but recommended that federal and state agencies continue to provide 
    training for instructors to assist the instructors in developing new 
    training methods and techniques. Another commenter stated that there 
    are many tools available to mine operators to ensure that training is 
    effective, including support from trade associations and labor 
    organizations, assistance from our Educational Field Services Division, 
    videotapes, interactive training tools, literature, and, where 
    appropriate, instructor training. This commenter endorsed the 
    flexibility afforded mine operators in designating training instructors 
    in the proposed rule and supported adopting such an approach in the 
    final rule.
        Several commenters disagreed with the approach taken in the 
    proposal and instead recommended formal MSHA approval of instructors. 
    These commenters maintained that operators would be unable to determine 
    whether someone was competent to provide training. Several of these 
    commenters were also concerned about whether a person who had extensive 
    substantive knowledge in one area would have the necessary 
    communication skills to provide effective training to miners. Some of 
    these commenters stated that if the existing instructor approval scheme 
    in existing part 48 is in need of improvement, necessary adjustments 
    should be made, but that some form of instructor approval should be 
    adopted in the final part 46 rule to ensure the quality of training.
        Under existing part 48, instructors generally obtain our approval 
    to provide training based on written evidence of their qualifications 
    and teaching experience. Several commenters questioned whether these 
    criteria ensured quality training. One commenter stated that becoming a 
    polished instructor by meeting some criteria for MSHA instructor 
    approval is secondary to the person being competent and knowledgeable.
    
    [[Page 53105]]
    
        Some of the commenters who supported a formal instructor approval 
    scheme similar to the part 48 approach recommended that if the final 
    rule did not require our approval of instructors, trainers should, at a 
    minimum, receive some form of communications training to ensure that 
    they will present training materials correctly and effectively. Several 
    commenters contended that a person who is going to conduct training 
    needs not only substantive knowledge of the subject area but also the 
    ability to convey the material effectively to the persons receiving the 
    training. One commenter suggested that instructors be required to 
    attend a formal program of instruction to prepare them to instruct 
    adults.
        A number of commenters stated that the final rule should impose no 
    additional qualifications for trainers beyond those that were included 
    in the proposed rule. Some indicated that operators should have broad 
    latitude to use on-site trainers for some, or all, of their training 
    needs. Other commenters believed that it is impossible to regulate the 
    quality of instruction with minimum criteria such as academic training, 
    mining experience, years of training experience, etc., and that an 
    instructor certification program would not guarantee the quality of 
    instruction.
        The final rule, like the proposal, does not require a formal 
    program for the approval or certification of instructors, or establish 
    extensive minimum qualifications for instructors. We are persuaded by 
    those commenters who insisted that a formal instructor approval program 
    would not guarantee that training will be effective and that any 
    benefits realized from a formal program would not justify the 
    additional administrative burden. We are also persuaded by commenters 
    who stated that there are many experienced and knowledgeable people 
    currently working in the industry who can provide effective training in 
    a wide variety of subject areas, and that their abilities would not be 
    enhanced by a formal instructor approval program.
        We are also persuaded by the statements of some commenters that a 
    formal instructor approval program would place limitations on the pool 
    of people who can provide effective training under the final rule, 
    which could have an adverse impact on the successful implementation of 
    the rule's requirements. The large majority of mines covered by the 
    final rule are small operations, employing fewer than 20 people; a 
    significant percentage of these mines have fewer than 5 employees. The 
    flexibility of the final rule will enhance their ability to meet their 
    training obligations. We expect that many small mines will arrange with 
    outside training providers to conduct some portion of required 
    training, supplemented by site-specific health and safety training 
    provided by experienced miners who are competent to instruct in their 
    areas of expertise.
        We have not included in the final rule a requirement that trainers 
    receive instruction in how to provide training before they serve as 
    instructors. We agree with the commenters who indicated that such a 
    requirement would provide no real guarantee of the quality of training 
    provided and would instead serve as an unnecessary hurdle for an 
    individual with the knowledge and experience to provide effective 
    training to qualify as a ``competent person'' under the final rule. 
    Instead, the final rule's definition of the term ``competent person'' 
    provides that the competent person must be able to effectively 
    communicate the training subject to miners. We intended in the proposal 
    that the ability to communicate effectively would be an essential 
    element of being a ``competent person.'' However, because many 
    commenters emphasized the importance of communications skills and 
    expressed concerns about the lack of a reference to these skills in the 
    proposal, we have included such a reference in the final rule. Under 
    the final rule you must, therefore, make an assessment of how well a 
    person can communicate in determining whether he or she is capable of 
    providing training for your miners. A person with extensive knowledge 
    in a particular subject area may not be a good choice as an instructor 
    if he or she is unable to convey the information to miners clearly and 
    effectively. If a person has extensive knowledge in a subject area but 
    has weak communication skills, you must either designate someone else 
    as the competent person or take steps to enhance the person's skills, 
    such as by arranging for the person to take a course in effective 
    communication.
        Under the final rule, as under the proposal, a competent person 
    must be able to evaluate whether the training given to miners is 
    effective. Several commenters suggested that the final rule provide 
    specific guidance in how the competent person should evaluate the 
    effectiveness of training. One commenter questioned whether the final 
    rule should require that a paper-based evaluation form be distributed 
    to miners at the conclusion of the training session, to be reviewed by 
    us at some later point. This commenter also asked whether the rule 
    should require that students be interviewed after the fact to determine 
    whether the training was adequate.
        Another commenter expressed concern over how a competent person who 
    neither works at the mine site nor regularly visits the site will be 
    able to evaluate the effectiveness of the training that has been given. 
    This commenter suggested that the competent person have some mechanism 
    to follow up to evaluate the effectiveness of the training either in 
    person or through the operator.
        The final rule does not provide specifications for conducting such 
    an evaluation, because the evaluation method will be determined to a 
    large extent by the type of training given. For example, a written test 
    might be appropriate in a traditional classroom setting, while a miner 
    receiving new task training may be asked to demonstrate to the trainer 
    that he or she can perform the task in a safe and healthful manner. We 
    have concluded that the final rule is not the place to address the wide 
    variety of appropriate evaluation methods that may be used. However, we 
    intend to provide assistance to production-operators and independent 
    contractors in all aspects of the final rule's requirements, including 
    ensuring that the training provided to miners is effective.
        A few commenters questioned whether we would have the authority to 
    revoke an individual's status as a ``competent person'' if we conclude 
    that the person does not have the ability to deliver effective 
    training. As a practical matter, because the final rule does not 
    establish a formal instructor approval program, there is no basis for 
    including formal rules to revoke such an approval. Instead, in cases 
    where we determine that an instructor lacks the ability to provide 
    effective miner training, we will cite the mine operator for a 
    violation of Sec. 46.4 of the final rule, for failing to designate a 
    person who is competent to provide required training. To abate the 
    violation, the operator could either designate someone else to provide 
    training, or take steps to address the deficiencies we identify in the 
    abilities of the person providing the training.
        Section 46.4(a)(3) has been added to the final rule in response to 
    comments. It provides that training must be presented in a language 
    understood by the miners who are receiving the training. This provision 
    has been added in response to several commenters who were concerned 
    about language barriers that exist at mines across the country where 
    miners are not fluent in English. These commenters stated that failure 
    to address this issue would present a serious obstacle to effective 
    training and that the final rule should be specific in
    
    [[Page 53106]]
    
    dealing with such situations. We agree with these commenters, and the 
    final rule has adopted their recommendation. You should be aware that 
    this requirement applies to both oral presentations and written 
    materials. For example, if an instructor is giving oral presentations 
    in Spanish to Spanish-speaking miners who are not fluent in English, 
    any written materials that are used to supplement the oral presentation 
    must also be in Spanish. Similarly, if warning signs at the mine serve 
    as a component of the site-specific hazard awareness training, the 
    signs must be in a language or languages that are understood by the 
    persons who come onto the mine site.
        Section 46.4(b) has been adopted with a nonsubstantive change from 
    the proposal and provides that you may conduct your own training or may 
    arrange for training to be conducted by state or federal agencies; 
    associations of production-operators or independent contractors; 
    miners' representatives; consultants; manufacturers' representatives; 
    private associations; educational institutions; or other training 
    providers.
        The proposal used the term ``associations of operators.'' The final 
    rule refers to ``associations of production-operators and independent 
    contractors,'' in response to commenters who stated that the term 
    ``operator,'' referring to both production-operators and independent 
    contractors, was ambiguous and a possible source of confusion. The 
    final rule, therefore, includes a specific reference to both 
    production-operators and independent contractors, to eliminate any 
    possible misunderstanding. We have also deleted redundant references to 
    ``other operators'' and ``contractors'' that were included in the 
    proposed rule, and have eliminated the specific reference to ``us.'' 
    Although MSHA works to facilitate effective training, we typically do 
    not provide miner health and safety training. This will avoid creating 
    the impression in the final rule that MSHA will serve as a training 
    provider.
        This provision makes clear that you may arrange with a wide variety 
    of training providers to satisfy the requirements of the final rule. 
    This aspect of the proposal received little comment, but those 
    commenters who addressed this provision generally supported it. 
    Although some production-operators and independent contractors, 
    particularly larger companies with formal health and safety programs, 
    may choose to provide all required training in-house, we expect that 
    many operators will make arrangements with outside organizations to 
    provide at least some portion of the required training. A wide variety 
    of effective miner training is available from many types of 
    organizations across the country, and this section of the final rule 
    makes clear that you are free to contract with outside training 
    providers to satisfy your training obligations. In addition, we will be 
    available to assist you in determining what training is appropriate for 
    your specific operations.
        Section 46.4(c) has been adopted from the proposal with some change 
    and provides that training required by OSHA or other federal and state 
    agencies may be used to satisfy the training requirements under part 
    46, provided that the training is relevant to the subjects required in 
    part 46. The final rule also specifies that you must document the 
    training in accordance with Sec. 46.9 of this part. The final rule 
    includes the added language that the training must be relevant to 
    training subjects required in this part, to make clear that only some 
    of the training used to satisfy OSHA requirements or the requirements 
    of other agencies may be credited under part 46. This provision 
    recognizes that many operations regulated by us, such as sand and 
    gravel or crushed stone sites, are also associated with other 
    facilities not regulated by MSHA, such as OSHA-regulated construction 
    sites. In many instances, employees may be shared across several 
    operations under the same management and may perform the same duties at 
    both sites.
        The preamble to the proposed rule stated that training provided in 
    accordance with Sec. 46.4(c) must be documented in accordance with 
    Sec. 46.9 to be credited toward part 46 requirements. However, the 
    proposed rule itself did not specifically require documentation. This 
    requirement has been included in final Sec. 46.4(c) to ensure that you 
    are aware of these recordkeeping obligations. This record must not only 
    reflect the duration of the training but must also provide evidence of 
    the relevance and equivalency of the training. We anticipate that 
    miners will in many cases provide you with a record of the equivalent 
    training that was made at the time that the training was given. In 
    cases where such a record is not available, you must document the 
    necessary information in accordance with Sec. 46.9.
        A number of commenters supported the acceptance of OSHA training 
    under part 46, stating that much of the training given to satisfy OSHA 
    requirements is relevant to hazards and conditions at the mines covered 
    by this rule. One commenter expressed concern that accepting OSHA or 
    other training to satisfy part 46 requirements could create serious 
    problems, because those programs do not cover all of the subjects 
    required under the Mine Act, such as the rights of miners and their 
    representatives, or address MSHA health and safety standards. Although 
    the commenter is correct in his assertion that such subjects typically 
    would not be covered in OSHA or other types of non-MSHA training, this 
    provision in no way is intended to relieve production-operators or 
    independent contractors of their obligations to ensure that those 
    subjects are covered as part of new miner and newly hired experienced 
    miner training. A production-operator or independent contractor who 
    uses OSHA training to satisfy part 46 requirements must ensure that 
    miners receive instruction in all required subjects. As a practical 
    matter, we expect that OSHA training and other types of training can be 
    used to satisfy only a portion of part 46 requirements, because this 
    training will be relevant only to some of the subjects required under 
    the final rule.
        To illustrate how crediting would work, assume that you hire a new 
    miner who worked in the construction industry and whose previous 
    employer provided him with some health and safety training. You 
    determine that the new miner has received four hours of training on 
    first aid methods; one hour of training on instruction and 
    demonstration on the use, care and maintenance of respiratory devices; 
    six hours of training on the safe operation of a front-end loader; and 
    four hours of instruction on the following subjects: electrical 
    hazards, silica, fall prevention and protection, excavations, material 
    handling and moving equipment.
        You would be able to credit the miner for four hours for the first 
    aid training. Additionally, if the miner will be required to use a 
    respirator that is the same type as the one for which he received 
    training, you may credit the miner with one hour of training on this 
    subject. Further, if the new miner will be operating the same type of 
    front-end loader that he was trained on as one of his tasks, you may 
    credit some, if not all, of the six hours of training. Finally, you 
    would have to determine how much of the training on electrical hazards, 
    silica, fall prevention and protection, excavations, material handling, 
    and moving equipment are relevant to the miner's exposure to hazards at 
    your mine. If you determine that all of the training is relevant, you 
    could credit the new miner with four hours of training. In this example 
    you would be able to credit the new miner with up to 15 hours of 
    training.
    
    [[Page 53107]]
    
        As mentioned above, you must document the previous training in 
    order for it to be credited. One method of accomplishing this is 
    obtaining documentation of the previous training. If this documentation 
    is not available, you must create a written record that identifies the 
    miner, the training which is being credited, when the training was 
    given, the duration of the training, the training methods used, and the 
    person who provided the training. Finally, you must ensure that this 
    individual receives training in all of the other subject areas required 
    to be covered under Sec. 46.5 (b) and (c).
        Section 46.4(d) adopts the proposed provision with a minor change 
    and provides that training methods under part 46 may consist of 
    classroom instruction, instruction at the mine, interactive computer-
    based instruction or other innovative training methods, alternative 
    training technologies, or any combination thereof. The final rule 
    includes a specific reference to ``interactive computer-based 
    instruction'' to make clear that we encourage the use of computer 
    technology in satisfying training requirements under this part. This 
    provision also recognizes that a combination of different training 
    methods can be extremely effective. Commenters were generally 
    supportive of this aspect of the proposed rule.
        One commenter stated that the most effective training will include 
    a blend of classroom instruction and on-site workplace interaction. We 
    anticipate that many of you will use a combination of approaches to 
    provide training, including innovative technologies. The classroom may 
    serve as the most appropriate forum for training on some subjects, such 
    as instruction in first aid or the statutory rights of miners and their 
    representatives. On the other hand, mine-site training in such areas as 
    the hazards of certain equipment or mining operations also has a place 
    in an effective training program.
        Final Sec. 46.4(e), like the proposal, allows employee safety 
    meetings, including informal health and safety talks and instruction, 
    to be credited toward new miner training, newly hired experienced miner 
    training, or annual refresher training requirements. The final rule, 
    also like the proposal, does not impose a minimum duration for training 
    sessions. Several commenters recommended that the final rule adopt the 
    requirement in part 48 that training sessions last at least 30 minutes. 
    Other commenters suggested, in the alternative, that a 10- or 15-minute 
    minimum be imposed. One commenter recommended that if the final rule 
    allows short sessions to be credited toward training requirements, 
    language should be included in the rule that spells out that only 
    actual instruction be counted. This commenter was concerned that only a 
    portion of a 15-minute session given to a group may be devoted to 
    actual training, taking into account the time required to gather the 
    group together and to focus their attention on the subject at hand. 
    Many other commenters supported not requiring a minimum period of 
    instruction, because in their view some of the best training occurs in 
    sessions of less than 15 minutes. These commenters maintained that the 
    rule should not impose an arbitrary restriction on the length of 
    training sessions. Some commenters stated that trainees can and will 
    retain information given to them in short concise sessions rather than 
    in long classroom courses. One commenter stated that short safety 
    meetings are often pointedly specific and can be given in close 
    proximity to the particular work to which it relates. This commenter 
    also stated that such training is often more memorable than material 
    given in the context of lengthy classroom instruction.
        A number of commenters indicated that short training sessions 
    provided throughout the year can be very effective. One commenter 
    stated that safety meetings that cover only job assignments and the 
    expectations for production for the week should not be used to satisfy 
    the requirements under the rule. However, this commenter added that 
    safety meetings that review safe work procedures for a specific job or 
    a specific piece of equipment should count toward part 46 requirements, 
    provided that the competent person takes steps to ensure that the 
    training has been effective within a reasonable period of time after 
    the training has been given. This commenter stated that there are 
    various ways the competent person could conduct such an evaluation, 
    including asking informal questions or watching miners perform a task.
        We are persuaded by those commenters who advocate flexibility in 
    the length of training sessions, and this determination is reflected in 
    the final rule. Final Sec. 46.4(e), like the proposal, requires that 
    short training sessions that are used to satisfy part 46 requirements 
    be documented in accordance with Sec. 46.9 of the final rule. This 
    paragraph also provides that you must include only the portion of the 
    session actually spent in training when you record how long the 
    training lasted. This provision has been included in response to 
    commenters who were concerned that a training session that is 20 
    minutes in length might include only 10 minutes of actual instruction. 
    This commenter was of the opinion that credit should be given only for 
    the time spent in actual training. The added language in this paragraph 
    responds to these concerns. For example, if safety talks are scheduled 
    to last 20 minutes but in reality only 10 minutes of that time is spent 
    in delivering an actual safety or health message, only 10 minutes may 
    be recorded and credited to training under part 46. Additionally, if 
    the session addresses other subjects besides those relevant to health 
    and safety, such as operational or production issues, only that portion 
    of the session that actually covers relevant health and safety subjects 
    may be counted and recorded.
        Several commenters questioned when a record must be made of such 
    training. For example, if short sessions are used to satisfy the eight-
    hour annual refresher training requirement under Sec. 46.8, must mine 
    operators document the training at the time that the training session 
    is completed, or is the record required at the completion of the entire 
    eight hours of training? We agree with commenters that this aspect of 
    the proposal requires clarification, and final Sec. 46.9, which 
    contains the recordkeeping requirements under the final rule, addresses 
    this issue in detail.
    
    Section 46.5  New Miner Training
    
        Final Sec. 46.5 reflects changes from the proposed rule. The final 
    rule, unlike the proposal, requires that a minimum of four hours of 
    training be given to new miners before they begin work at the mine. 
    Additionally, the final rule adjusts the time periods in which you must 
    provide new miner training and includes a table that presents when and 
    what new miner training must be provided. The final rule also clarifies 
    the oversight under which new miners must work before they complete the 
    full 24 hours of new miner training.
        As in the proposal, final Sec. 46.5 includes minimum requirements 
    for training new miners when they begin work at a mine, lists subject 
    areas that the training must address, and identifies the subjects that 
    must be covered before new miners begin work at the mine and no later 
    than 60 days after employment begins. The final rule also specifies the 
    minimum number of hours of instruction required by the Mine Act for new 
    miner training and the circumstances where previous training may 
    satisfy new miner training requirements.
        As in the proposed rule, Sec. 46.5(a) of the final rule requires 
    that new miners receive a minimum of 24 hours of
    
    [[Page 53108]]
    
    training. A few commenters questioned the need for a full 24 hours of 
    training for new miners at very small operations, citing the expenses 
    associated with training, the lack of complexity of their operations, 
    and the limited number of hazards that are present at very small 
    surface mines.
        We recognize that there are expenses associated with providing new 
    miner training. However, we believe that the cost of not providing 
    effective training for new miners is considerable. As voiced by several 
    commenters, prudent operators recognize that an investment in health 
    and safety training for employees makes economic sense. Commenters 
    pointed out that a safe and healthful workplace is typically a highly 
    productive one. Attention to health and safety through effective worker 
    training can minimize workers' compensation expenses and avoid 
    extensive medical costs and elevated insurance rates that result from 
    accidents and injuries. We do not agree with commenters who contended 
    that there are fewer workplace hazards at exempt mines compared to 
    other mines. Most significantly, we do not have the authority to reduce 
    the 24-hour new miner training requirement. As noted in the preamble to 
    the proposed rule, section 115(a)(2) of the Mine Act requires mine 
    operators to provide at least 24 hours of training to inexperienced 
    surface miners. It is beyond the scope of our rulemaking authority, and 
    only within Congress' legislative powers, to reduce the 24-hour new 
    miner training requirement. Consequently, we are committed to 
    implementing the congressional directive of section 115(a)(2) of the 
    Mine Act.
        Proposed Sec. 46.5(b) would have required that new miners be given 
    instruction in certain subject areas prior to beginning work, but the 
    proposal did not establish a minimum number of hours to be devoted to 
    this initial training. Instead of requiring a minimum number of hours, 
    the proposal delineated four subject areas on which new miners would 
    receive pre-work training to ensure that they are familiar with the 
    operations and environment at the mine, their job duties, and the 
    hazards they may encounter at the mine site. We solicited comment on 
    the appropriateness of this approach, including whether a minimum 
    number of hours should be devoted to initial training, or whether 
    certain criteria, such as mine size or complexity or type of operation 
    or equipment, should govern how much initial training is required. We 
    also described alternative approaches that we considered in developing 
    this provision, including requiring that miners receive the full 24 
    hours of training, or a lesser amount such as two or four hours, before 
    they begin work duties.
        A number of commenters supported requiring a minimum number of 
    hours of training before new miners begin work. One commenter favored 
    an eight-hour minimum of a combination of hazard awareness training and 
    task-specific training before a miner begins work. Another commenter 
    recommended that the final rule require a minimum number of hours of 
    pre-work training and that the minimum number of hours be tied to mine 
    size. This commenter provided as examples an eight-hour minimum for new 
    miners at small mine operations, a 16-hour minimum at mines of moderate 
    size, and the full 24 hours of pre-work training at large mines. 
    Another suggested an eight-hour minimum pre-work training requirement 
    for operations with five or more miners and a minimum of two hours for 
    operations employing fewer than five miners. One commenter who 
    supported an eight-hour minimum stated that small aggregate mines, for 
    example, could meet the requirement by having the new miner perform 
    tasks to which he or she will be assigned. A few commenters stated that 
    all 24 hours of new miner training should be required for some miners, 
    such as independent contractor employees, before they start work at a 
    mine, because these miners are frequently not on the site long enough 
    to receive adequate comprehensive training.
        Several commenters strongly advocated adoption of the 24-hour pre-
    work training requirement in part 48 and cautioned against allowing 
    initial training in periods shorter than eight hours. Under part 48, an 
    operator must give new miners the full 24 hours of training before 
    assigning miners work at the mine, unless the district manager 
    specifically permits the operator to do otherwise. Even with district 
    manager approval, however, part 48 requires operators to provide new 
    miners with a minimum of eight hours of training in certain subjects 
    before they begin work duties. One commenter, who supported a 24-hour 
    pre-work training requirement, maintained that inexperienced miners can 
    be overwhelmed, often tragically, by too many hazards at one time. 
    Supporters of the part 48 approach were particularly concerned that not 
    requiring a specific length of time for training prior to assigning 
    work duties is inconsistent with the Mine Act and part 48 and would 
    lead to abuse in favor of production expediency. According to these 
    commenters, various factors, such as the hazardous nature of mining, 
    the cyclical nature of work, frequent employee turnover, and the 
    inexperience of new miners, reinforce the need for comprehensive and 
    complete training before work duties commence. One commenter added that 
    tracking the amount of training to fulfill the mandated 24-hour 
    requirement would be complicated if fewer than eight hours of initial 
    training were permitted at certain mines based on their size or 
    complexity.
        Many commenters opposed any minimum initial training period 
    requirement and asserted that it would be unduly burdensome and 
    unnecessary to apply a minimum number of hours requirement at many 
    mines, particularly at small mines with few employees and limited 
    equipment. Several of these commenters endorsed the proposal's emphasis 
    on a minimum curriculum requirement for new miners before they begin 
    performing assigned job duties, rather than on the amount of time to be 
    spent initially training new miners. Some commenters stated that by 
    requiring a minimum course content, and not a minimum time for initial 
    training, we would permit a more flexible approach to training that 
    recognizes the wide variety of mines covered by part 46. This would 
    allow mine operators to vary the length of individual training topics 
    depending on their needs, mining operations, and experience of their 
    new miners. According to the commenters, a ``one-size-fits-all'' miner 
    training regulation could be costly and ultimately ineffective. One of 
    these commenters maintained that the minimum curriculum requirement 
    combined with the overall 24-hour new miner training requirement is, in 
    fact, protective of the miner. A different commenter pointed out that 
    specifying a minimum number of hours for initial training based upon 
    mine size or complexity could have the unintended effect of depressing 
    mine employment opportunities because operators would limit mine size 
    to avoid stepping up to the next level of training requirements.
        We believe it is imperative that new miners are trained and 
    familiar with the operations and environment at the mine, their job 
    duties, and the fundamental hazards they may encounter at the mine site 
    before they actually commence work duties. After reviewing and 
    considering the comments received, we have concluded that the final 
    rule should establish a minimum number of hours of pre-work
    
    [[Page 53109]]
    
    training. As noted elsewhere in this preamble, our fatal accident 
    investigations show that a majority of miners involved in fatal 
    accidents at mines that have been exempt from enforcement under the 
    training rider had not received health and safety training that 
    complied with part 48. Moreover, miners at smaller mining operations, 
    many of which are covered by the final rule, also experience higher 
    fatality rates than those at larger operations. We are concerned that 
    by not establishing a minimum number of hours of pre-work training we 
    may inadvertently encourage some operators to devote less than an 
    appropriate amount of time and attention to the pre-work training 
    subjects and essential orientation of new miners. As pointed out by 
    some commenters, inexperienced miners who are unfamiliar with mining 
    methods in general and with the mine site in particular are especially 
    vulnerable to the hazards of their new work environment. We believe 
    that these miners need fundamental and critical health and safety 
    information relevant to their work sites at the earliest stage of their 
    employment. In addition, the time spent presenting this information 
    must be of a sufficient minimum duration to ensure that the training is 
    thorough, meaningful, and effective to orient the new miner to his or 
    her workplace and its health and safety hazards.
        We have determined, after reviewing the comments, that at least 
    four hours of pre-work training is needed to provide a new miner with 
    the knowledge and skills to work safely. For the most part, new miners 
    do not possess the knowledge and skills they need to work at a mine in 
    a safe and healthful manner. New miners need some formal and practical 
    training and practice under observation to acquire the knowledge and 
    master the skills they need to avoid endangering themselves or others.
        For example, a new miner needs to know how to stop the conveyor 
    belts in use at the mine before he or she begins work there, so that 
    the miner can stop the belt in the event of an emergency. If a co-
    worker becomes entangled in a moving conveyor, quick action is 
    essential to save the person's life. Unfortunately, some miners have 
    lost their lives because a fellow miner did not know that he could pull 
    the stop cord, located less than a foot away, to stop the belt and save 
    his co-worker. New miners must also be aware that it is unsafe to walk 
    close to storage piles or on top of surge piles. The miner also needs 
    to be aware that he or she must exercise extra care around the mine 
    site, because equipment operators' visibility is typically limited 
    compared to the visibility of a driver in a car on a highway. New 
    miners also need to be familiar with the mine's emergency procedures, 
    including the location of the nearest telephone.
        Consequently, final Sec. 46.5(b) requires you to provide no less 
    than four hours of training on the subjects specified before a new 
    miner begins work at the mine. The four-hour pre-work training 
    requirement is a minimum. Clearly, if your mining operation is large 
    and complex, or if the new miner will be performing multiple tasks, 
    more time may be necessary to present the pre-work training materials 
    effectively and in accordance with your training plan. We believe that 
    you are in the best position, with the assistance of miners and their 
    representatives, to determine the correct amount of pre-work new miner 
    training, beyond the four-hour minimum, that is warranted at your 
    operation. You still have the flexibility to address specific problems 
    that may exist at your mine and to vary the length of training time 
    spent on each subject. In this way, you can provide the most effective 
    learning situations for your new miners before they begin work. The 
    length of time devoted to each subject may depend on such factors as 
    the miners' prior experience and familiarity with the aspects of their 
    new assignments, the mining methods used, the environmental conditions 
    at the mine, the tasks to be performed, and the mine's health and 
    safety procedures.
        We recognize that some operators of very small mines with limited 
    equipment and facilities may be initially concerned that the four-hour 
    minimum presents too large a burden and is unnecessary. However, these 
    operators should be aware that final Sec. 46.5(e) permits you to 
    satisfy some part of the pre-work training requirements by having the 
    miner practice assigned tasks under controlled conditions.
        Proposed Sec. 46.5(b) would have required that operators provide 
    instruction for new miners in four areas before they begin work--
    
        (1) An introduction to the work environment, including a visit 
    and tour of the mine, or portions of the mine that are 
    representative of the entire mine. The method of mining or operation 
    utilized must be explained;
        (2) Instruction on the recognition and avoidance of hazards, 
    including electrical hazards, at the mine;
        (3) A review of the escape and emergency evacuation plans in 
    effect at the mine and instruction on the firewarning signals and 
    firefighting procedures; and
        (4) Instruction on the health and safety aspects of the tasks to 
    be assigned, including the safe work procedures of such tasks, and 
    the mandatory health and safety standards pertinent to such tasks.
    
        Proposed Sec. 46.5(d) also would have required that within 60 days 
    after a new miner begins work at a mine, the balance of the 24 hours of 
    new miner training would be provided on the following subjects--
    
        (1) Instruction on the statutory rights of miners and their 
    representatives under the Act;
        (2) A review and description of the line of authority of 
    supervisors and miners' representatives and the responsibilities of 
    such supervisors and miners' representatives;
        (3) An introduction to your rules and procedures for reporting 
    hazards;
        (4) Instruction and demonstration on the use, care, and 
    maintenance of self-rescue and respiratory devices, if used at the 
    mine; and
        (5) A review of first aid methods.
    
        In the final rule, we have added three subject areas that were 
    proposed as post-work training subjects under Sec. 46.5(d)(1), (2), and 
    (3), listed above, to the pre-work training requirements under final 
    Sec. 46.5(b)(5), (6), and (7). These additional subjects include 
    miners' rights; company rules and procedures for reporting hazards; and 
    the hierarchy of authority of supervisors and miners' representatives 
    and their associated responsibilities. We explained in the preamble to 
    the proposed rule that instruction in the delineated initial subjects 
    is intended to ensure that new miners--
        (1) Are sufficiently familiar with the hazards at the mine;
        (2) Can avoid exposing themselves and others to unnecessary risks;
        (3) Can perform their job assignments safely; and
        (4) Are able to respond to mine emergencies.
        After evaluating comments and testimony, we have concluded that 
    these objectives are best served by requiring that instruction on the 
    three additional subjects be given to new miners before they start work 
    at the mine. Some commenters supported requiring instruction on the 
    company safety policy and on miners' statutory rights as part of the 
    pre-work training curriculum. They indicated that allowing operators up 
    to 60 days to inform miners of this critical information was 
    inappropriate and not protective of miners. To ensure that the health 
    and safety of new miners is not compromised or jeopardized, we believe 
    instruction on the three subject areas must be provided before a miner 
    begins work at the mine. This information will ensure that a new miner 
    knows what fundamental steps to take at the mine to prevent or respond 
    to hazards, who the
    
    [[Page 53110]]
    
    management personnel and miners' representatives are at the mine, and 
    what specific statutory rights protect the miner from an unsafe or 
    unhealthful work environment.
        The subject areas for new miner training specified in the proposed 
    rule, which were based on those mandated by section 115(a)(2) of the 
    Mine Act, have been retained with minor modifications in the final 
    rule. The topics are sufficiently broad to provide operators with the 
    flexibility not only to introduce new miners to the mining industry but 
    also to address particular conditions and practices that present safety 
    and health hazards at their mines. In addition, as mentioned earlier, 
    portions of final Sec. 46.5 are presented in a table format to make it 
    easy for you to determine the subjects that you must cover for new 
    miner training and when the subjects must be addressed.
        We received few comments on the appropriateness of the subject 
    areas delineated in the proposal. Of those who commented on the pre-
    work training subjects, several commenters supported the mandatory 
    subject areas that were specified in the proposed rule. One of these 
    commenters maintained that it was unacceptable to give operators total 
    discretion on the subjects to be covered in new miner training. The 
    commenter stated that to do so would leave many of these new miners, 
    who are at high adverse occupational risk, unprepared for work at the 
    mine.
        We believe that it is not enough for new miners to receive only a 
    general orientation before they begin work. The initial training must 
    also address potential hazards and risks that new miners may encounter 
    at the specific mine site where they will work. As a result, we have 
    clarified the language of Sec. 46.5(b) to provide that the pre-work new 
    miner training in the specified subject areas must also address site-
    specific hazards at the mine.
        Several other commenters suggested revisions in the language for 
    the mandatory pre-work subjects. As a result, final provisions of 
    Sec. 46.5(b)(1) through (b)(3) vary slightly from the proposed rule. 
    One commenter recommended that Sec. 46.5(b)(1) include the term 
    ``walkaround training'' within the description of ``introduction to the 
    work environment.'' We have inserted this term in the referenced 
    paragraph to clarify that the visit and tour of the mine, which is part 
    of the introduction to the work environment, is considered the 
    ``walkaround training'' specified in Sec. 115(a)(2) of the Mine Act. 
    One commenter recommended that the words ``and observed'' be inserted 
    after the word ``explained'' in proposed Sec. 46.5(b)(1) so that it 
    would read that ``the method of mining or operation utilized must be 
    explained and observed'' (emphasis added).
        As indicated in the preamble discussion in the proposed rule, we 
    had intended that proposed Sec. 46.5(b)(1) would read essentially the 
    same as the commenter has suggested. We inadvertently failed to include 
    the language we had specified in the preamble in proposed 
    Sec. 46.5(b)(1). Accordingly, the final rule includes the language that 
    was mistakenly omitted from the proposal.
        Many commenters generally recommended that the final rule language 
    include more illustrative examples to provide guidance to the regulated 
    community. One commenter generally asserted that we should designate 
    mandatory training subjects based on an analysis of accidents and 
    injuries in our accident and injury database, which he indicated should 
    show the subjects on which miners need training. Some commenters 
    specifically recommended that final Sec. 46.5(b)(2) include examples of 
    hazards, other than just electrical, that might be included as training 
    subjects. In response to these commenters' suggestions, we have 
    identified other types of common mine hazards derived from our accident 
    and injury database as examples of subject areas that might be relevant 
    for new miner training, including traffic patterns and control, mobile 
    equipment (haul trucks and front-end loaders), and adverse ground 
    conditions. We intend these examples to serve only as illustrations of 
    possible subjects for new miner training. They are not mandatory 
    topics.
        Proposed Sec. 46.5(b)(3) covered general subject areas associated 
    with emergencies, such as ``escape and emergency evacuation plans in 
    effect at the mine and instruction on the firewarning signals and 
    firefighting procedures,'' that would be required before a new miner 
    begins assigned work duties. One commenter stated that comprehensive 
    first aid training should be addressed, while another commenter 
    advocated that emergency medical procedures be covered during this 
    initial training period. We believe that it is not necessary for miners 
    to receive first aid training and/or a review of first aid methods 
    before they start work. MSHA regulations at 30 CFR 56.18010 already 
    require that an individual capable of providing first aid be available 
    on all shifts, which ensures that a trained person is on site in case 
    of emergency. For this reason, the final rule does not require first 
    aid subjects to be covered as part of the pre-work training. On the 
    other hand, instruction on emergency medical procedures at the mine 
    will ensure that new miners will know from the beginning what steps 
    must be taken in the event of a medical emergency. We have included 
    this topic as part of pre-work training for new miners in paragraph 
    (b)(3). Basically, training on emergency medical procedures could 
    include, as appropriate, a briefing on what steps a miner should take 
    in the event of a medical emergency, the identification of the people 
    at the mine who have satisfactorily completed first aid training, the 
    locations of first-aid equipment and supplies, arrangements that the 
    mine operator has made for 24-hour emergency medical assistance (e.g., 
    with local physicians, medical services, or hospitals, and with 
    emergency transportation services), and where the information on these 
    arrangements are posted at the mine.
        Proposed Sec. 46.5(c) would have allowed new miners to practice 
    under the ``close supervision of a competent person'' to satisfy the 
    Sec. 46.5(b)(4) requirement for training on the health and safety 
    aspects of an assigned task, provided that hazard recognition training 
    for the assigned task is given before the miner actually performs the 
    task. Although we did not define the term ``close supervision'' in the 
    proposed rule, we explained in the preamble that we considered it to 
    mean that the ``competent person is in the immediate vicinity of the 
    miner and focusing his or her complete attention on the actions of the 
    miner being trained.'' We also stated that ``[a] miner would not be 
    considered under `close supervision' if the competent person is 
    occupied with any other task or is not in close proximity to the 
    miner.''
        The term ``close supervision'' was also used in proposed 
    Sec. 46.5(a), which would have required a new miner who had not 
    completed the full 24 hours of new miner training to work ``under the 
    close supervision of an experienced miner.'' Our rationale for this 
    proposed requirement, which is modeled after a similar requirement in 
    Sec. 48.25(a), was to protect the health and safety of a new untrained 
    miner until the miner had completed new miner training.
        We received considerable comment on the use of the term ``close 
    supervision'' in Sec. 46.5 (a) and (c) of the proposed rule. Generally, 
    commenters did not object to the concept that inexperienced personnel 
    should be closely supervised or have a mentor until they acquire the 
    knowledge, experience, and skills to perform their assigned duties in a 
    safe and healthful manner.
    
    [[Page 53111]]
    
        A clear majority of commenters, however, provided unfavorable 
    comment on the term ``close supervision,'' either disagreeing with our 
    interpretation of how it would apply in proposed Sec. 46.5(a) and (c) 
    or disagreeing with the use of the term altogether. One sentiment 
    echoed by most commenters was that the description of ``close 
    supervision'' in the proposed rule preamble was too restrictive and 
    appeared to prohibit the experienced miner in proposed Sec. 46.5(a) and 
    the competent person in proposed Sec. 46.5(c) from training or 
    supervising several people at one time. One commenter indicated that 
    the level of supervision required in Sec. 46.5(a) should be different 
    from the level required in Sec. 46.5(c) and suggested that 
    ``appropriate supervision'' would be the more suitable term for 
    purposes of the requirements in Sec. 46.5(a). Another commenter stated 
    that some of the work assignments appropriate for new miners to 
    practice under Sec. 46.5(c) may be relatively low-risk activities that 
    do not warrant the undivided attention of a competent person.
        Similarly, commenters expressed specific concern with proposed 
    Sec. 46.5(a) because of the impracticality of requiring an experienced 
    miner to provide close supervision, as that term was described, of a 
    miner who had not received the full 24 hours of new miner training. In 
    some cases, commenters noted, for each miner trainee needing close 
    supervision, the activities of one experienced miner could be 
    restricted for up to 60 days under this provision. Several commenters 
    pointed out that the greatest impact and burden of complying with these 
    requirements would be on small operators, who have limited personnel 
    and resources and cannot afford to dedicate personnel to supervise new 
    miners in lieu of performing their normal work duties. One commenter 
    indicated that operators' flexibility to provide quality training 
    tailored to their needs would be weakened if they had to choose between 
    providing 24 hours of new miner training quickly or assigning 
    experienced miners to supervise the new miners for lengthy periods. 
    Commenters also suggested more limited periods of time, ranging from 16 
    to 40 hours, for a new miner to be closely supervised by an experienced 
    miner under Sec. 46.5(a). One commenter maintained that continuous 
    oversight of the new miner under Sec. 46.5(a) was necessary for a 
    limited period of time, but after that, new miners should be able to 
    work, but not alone or in an area where an experienced miner cannot see 
    or hear the new miner. A few commenters characterized a situation where 
    the new miner could work under a ``loose buddy system'' until the miner 
    received adequate training to function safely and independently. Still 
    another stated that new miners should be ``under observation'' so that 
    negative effects do not result.
        A few commenters recommended that if the final rule adopts the term 
    ``close supervision,'' the rule should define the term so that people 
    understand what is required without having to refer to the preamble. 
    Some urged that either the term ``close supervision'' be more flexible 
    and redefined, or another term or standard be adopted instead. Many 
    commenters stated that the decision on how closely the miner trainee 
    should be supervised should be within the discretion of the operator 
    and based on the level of perceived risk, evaluating the hazards 
    involved in performing work duties and the employee's work experience. 
    Some commenters recommended that the final rule define ``close 
    supervision'' as ``appropriate attention commensurate with the risks of 
    the supervised activity.'' Another commenter suggested that the 
    experienced miner (or competent person) should be ``close enough to the 
    trainee so that they can communicate in a normal conversational tone'' 
    while the new miner is performing tasks that may expose the miner to 
    mining hazards. Some commenters objected to the term ``supervision'' 
    since it could be incorrectly interpreted to mean that the rank-and-
    file worker, who may be the designated competent person or experienced 
    miner, was operating in a supervisory capacity or as an agent of the 
    operator.
        We carefully considered the comments received and admit that our 
    characterization of the term ``close supervision'' in the proposal was 
    too narrow and did not afford the flexibility that operators need to 
    provide effective new miner training. We also recognize that the term 
    caused considerable confusion and disagreement among commenters. We do 
    not agree, however, with many of the commenters' suggested alternatives 
    because many of the alternatives are themselves vague or subjective.
        In Sec. 46.5(a) of the final rule, we adopt the proposed approach 
    of requiring an experienced miner to provide adequate oversight until 
    the new miner has received all 24 hours of new miner training. However, 
    we do not use the term ``close supervision,'' adopting instead 
    performance-based language. Until the training is completed, an 
    experienced miner designated by the operator will be required to 
    observe the new miner's work practices to ensure the miner is not 
    jeopardizing his or her health or safety or the health or safety of 
    others. We do not mean that the experienced miner must abandon his or 
    her normal duties or be assigned to oversee only one new miner. 
    However, in some situations, that may be necessary to ensure that this 
    performance-based standard is met. The relevant portion of final 
    Sec. 46.5(a) is revised to read as follows:
    
        Miners who have not received the full 24 hours of new miner 
    training must work where an experienced miner can observe that the 
    new miner is performing his or her work in a safe and healthful 
    manner.
    
        For reasons similar to those stated above, we do not adopt in the 
    final rule the term ``close supervision'' used in proposed 
    Sec. 46.5(c), which we have redesignated Sec. 46.5(e) in the final 
    rule. Instead, the final rule requires that practice to fulfill the 
    requirement for training under Sec. 46.5(b)(4) on the health and safety 
    aspects of an assigned task must be performed under the ``close 
    observation'' of a competent person. We would like to emphasize that 
    practice is only allowed to fulfill the Sec. 46.5(b)(4) training 
    requirement and not all pre-work training requirements. We recognize 
    that having the miner practice the actual assigned task may be an 
    appropriate method of training for the health and safety aspects of the 
    task, provided that training, and not production, is the primary goal 
    of performing the task. This interpretation is consistent with 
    Congress' intent that training include a period conducted in 
    circumstances that duplicate actual mining facilities. Conference Rep. 
    No. 95-461, 95th Cong., 1st Sess., 63 (1977).
        Proposed Sec. 46.5(d), which has been redesignated Sec. 46.5(c) in 
    the final rule, listed the training subjects that new miners would be 
    required to receive no later than 60 days after they begin work at the 
    mine. As discussed earlier, proposed Sec. 46.5(d) would have required 
    ``review of first-aid methods'' within this 60-day time frame, and this 
    requirement has been retained in Sec. 46.5(c) of the final rule. For a 
    variety of reasons, a requirement of comprehensive first-aid training 
    for many miners is impracticable. A comprehensive first-aid course may 
    last eight hours or longer, a significant portion of the required 24 
    hours of new miner training. There are a number of other areas that 
    could be addressed during this time that will be of greater overall 
    benefit to the health and safety of miners in the workplace. 
    Additionally, one commenter was
    
    [[Page 53112]]
    
    concerned that some people are not physically, mentally, or emotionally 
    equipped to perform first-aid procedures. Nevertheless, the commenter 
    stated that a review of first-aid methods is valuable.
        As noted in the proposed rule preamble, you would not be required 
    to hire an approved first-aid instructor or obtain first-aid teaching 
    equipment to provide this instruction. Typically there are miners and 
    designated supervisors at the mine who have already been trained in 
    first aid under the requirements of 30 CFR part 56. One of these 
    individuals could serve as a competent person to provide the first-aid 
    review for new miners.
        A few commenters suggested that instruction on respiratory 
    protection be required before a miner begins work at a mine. Although 
    this is an important topic, the final rule does not require new miners 
    to receive training in this subject before they start work. We have 
    determined that allowing this training to take place after miners begin 
    work is unlikely to adversely affect miners' health and safety. As a 
    practical matter, part 48 allows operators to cover this subject after 
    the miner begins work but within 60 days, in those cases where the 
    district manager permits a production-operator or independent 
    contractor to provide new miners with training after assignment of work 
    duties. Additionally, if the miner must use respiratory protection 
    while performing his or her duties, the operator must provide 
    appropriate instruction in the use of the respirator under 
    Sec. 46.5(b)(4) of the final rule, which requires that instruction on 
    the health and safety aspects of the tasks assigned be provided to a 
    new miner before the miner begins work. For that reason, we do not 
    believe that every new miner needs instruction on respiratory 
    protection before their work commences and have not included language 
    to that effect in the final rule.
        As previously mentioned, Sec. 46.5(d) of the proposed rule would 
    have required that the balance of statutorily-mandated new miner 
    training be given within 60 days after the new miner begins work. For 
    practical reasons outlined in the preamble, we explained that the 60 
    days would be measured in calendar days, not working days, and we 
    solicited comment on the proposed schedule and approach.
        Only a handful of commenters agreed with the proposed 60-calendar 
    day time limit; the majority of commenters did not support the time 
    period in the proposed rule. A few commenters opposed the 60-day time 
    frame or any suggestions to extend the time frame. Instead, these 
    commenters urged the adoption of a shorter time period. They endorsed 
    either the full 24 hours of new miner training being given before the 
    miner begins work duties, or a 30-day time period after the miner 
    begins work within which to complete the remainder of the 24 hours of 
    new miner training. One of these commenters stated that some employers 
    might exploit a longer time period and deprive short-term miners of 
    valuable training. One commenter echoed general concerns that, if the 
    time frames are promulgated as proposed, part 46 will provide less 
    protection for new miners than existing part 48.
        Most commenters who opposed the proposed 60 calendar-day period, 
    however, suggested that either a 60 working-day or longer time period 
    be allowed for completion of the mandated 24 hours of new miner 
    training. One commenter who advocated a 60 working-day deadline 
    appeared to believe, mistakenly, that we intended to require a 
    production-operator or independent contractor to provide new miner 
    training even when the proposed 60 calendar days occurred during a 
    period that a miner was laid off and not working for the operator. This 
    was not our intent. However, we want to make it clear that if this 
    worker were rehired as a miner, an operator employing that miner would 
    be required to provide new miner training in accordance with Sec. 46.5, 
    although certain new miner training taken previously could be credited 
    towards the new miner training requirements. This is discussed in 
    greater detail below.
        A few commenters indicated their concern with recouping the 
    substantial economic investment incurred for training if the balance of 
    training were required to be provided within the proposed 60-day 
    period. In justifying support for a 60- to 120-day time period, one 
    commenter stated that the investment in training should be required 
    closer to the time when the operator decides whether to permanently 
    hire that miner. Another commenter, concerned with the employee 
    turnover in the industry, made a similar argument and recommended 
    increasing the 60-day time period to 6 months, or to stipulate that the 
    training should be completed within six months or by the end of the new 
    miner's probationary period, whichever comes first. Still others noted 
    that a 60-day period would not be practical for miners who are employed 
    intermittently. One of these commenters proposed a one-calendar-year 
    time period for intermittent employees to complete the required 24 
    hours of new miner training.
        For a number of reasons, the majority of commenters opposing the 
    proposed 60-day period maintained that it was too short, especially for 
    small operations. They either favored a 90 calendar-day time period to 
    complete new miner training or stated that they would not object to 
    such a requirement. Some asserted that it would be unduly burdensome 
    for operators to schedule with outside training contractors within the 
    proposed 60-day time period and then to provide such training several 
    times within one year as new miners are hired. They argued that a 90 
    calendar-day period was preferable and that in most cases would add up 
    to approximately 60 working days. One commenter endorsed the 90 
    calendar-day option since it seemed to balance the needs of employers 
    to arrange for training and the needs of new miners to receive training 
    in a timely manner.
        Under Sec. 46.5(c) of the final rule, you must provide training on 
    the balance of the new miner subject areas required under the Mine Act 
    (i.e., self-rescue and respiratory devices, and first aid review) no 
    later than 60 days after a new miner begins work at the mine. In 
    addition, after a miner has received the required minimum training in 
    Sec. 46.5(b) and (c), Sec. 46.5(d) allows the operator up to 90 days to 
    provide training on other subjects that promote occupational safety and 
    health for their new miners and to count the amount of time spent on 
    presenting that instruction towards fulfillment of the 24-hour new 
    miner training requirement. Until the new miner receives the full 24 
    hours of new miner training, the miner must work where an experienced 
    miner can observe that the new miner is working in a safe and healthful 
    manner.
        In this way, operators may select and present additional, 
    appropriate instruction on subjects that will increase the knowledge 
    and ability of each new miner to work safely, avoid injuries and 
    illness, and respond to emergencies at the mine. Operators will also 
    gain the added flexibility to spread the remainder of the 24 hours of 
    new miner training over a longer period of time, if they wish, which 
    should alleviate some of their concerns with scheduling training and 
    meeting the 24-hour training requirement. At the same time, we believe 
    this will provide necessary and meaningful training to new miners 
    within a relatively short period after the worker accrues some work 
    experience at the mine. We wish to reiterate that there are advantages 
    to training new miners over a longer period of time. New miners, even 
    if they have worked a short
    
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    period of time at the mine, will retain training information better 
    because they will have some practical work experience and will 
    recognize the relevance of the training material to their work duties.
        As in the proposed rule, both the 60-day and 90-day periods 
    prescribed by the final rule are calendar days and not working days. As 
    stated in the preamble to the proposal, a deadline measured in working 
    days would be impractical, particularly given the intermittent and 
    seasonal work schedules of many operations. A deadline measured in 
    working days would not only present an administrative burden to you, 
    both for paperwork and for class scheduling, but would also make 
    enforcement extremely difficult for us.
        To minimize the likelihood that a miner would have to repeat new 
    miner training unnecessarily, the final rule, like the proposal, allows 
    training credit to be given where a new miner had not attained 
    experienced miner status for training purposes but had previously 
    completed new miner training under part 46 or 48. Under certain 
    conditions, credit for relevant courses may be given towards the 24-
    hour new miner training requirement under Sec. 46.5(a) and towards the 
    mandatory subject requirements under Sec. 46.5(b) and (c) for that 
    miner. Although we solicited comment in the proposed preamble on 
    whether the final rule should allow such crediting and how it should be 
    addressed, only one commenter specifically responded to our 
    solicitation and endorsed the proposed approach, without suggesting any 
    modifications. Accordingly, we have adopted the provisions of proposed 
    Sec. 46.5(e) and (f) in the final rule, which we have redesignated 
    paragraphs (f) and (g), respectively.
        Under Sec. 46.5(f) of the final rule, a miner who has completed new 
    miner training under Sec. 46.5 or Sec. 48.25 within the previous 36 
    months but who does not have the 12 cumulative months of experience for 
    ``experienced miner'' status is not required to repeat new miner 
    training, with one exception. The operator is still required to provide 
    this miner with pre-work training on the seven subjects specified in 
    Sec. 46.5(b) to ensure that the miner has site-specific familiarity 
    with the mine's operations and practices before work duties commence.
        Similarly, final Sec. 46.5(g) permits an operator to credit a new 
    miner training course completed by a miner under Sec. 48.5 or 
    Sec. 48.25, provided that the course was completed within a 36-month 
    period prior to the miner beginning work at the mine and is relevant to 
    subject areas specified in Sec. 46.5(b) and (c). For example, a new 
    miner may have completed an hour of instruction at an underground mine 
    on the statutory rights of miners and their representatives, and an 
    hour on the use, care, and maintenance of self-rescuers or respiratory 
    devices within the previous 36-month period. The final rule allows 
    credit towards the 24-hour new miner training requirement, as well as 
    toward the mandatory subject requirement, for the one hour spent on the 
    miners' rights course. The final rule also allows credit for the one 
    hour spent on the respiratory protective equipment course, but only if 
    such equipment is used at the mine where the miner is currently 
    employed.
        A few commenters indicated that it was not clear when new miner 
    training requirements would apply to a miner who is employed by an 
    independent contractor and moves from mine to mine performing services, 
    or to a miner employed by a production-operator who works at multiple 
    mines operated by the same production-operator. Commenters raised this 
    question because we defined a new miner in the proposal as ``a newly 
    hired miner who is not an experienced miner'' (emphasis added) but did 
    not explain what we meant by ``newly hired.'' It was our intent that 
    new miner status and new miner training requirements would apply when 
    two conditions were met: first, when the miner does not fit the 
    definition of ``experienced miner;'' and second, when the miner begins 
    employment with a new employer. We acknowledge that our use of the term 
    ``newly hired'' in the proposed new miner definition did not expressly 
    convey the second condition and, as explained elsewhere in this 
    preamble, we have revised that definition. Under the final rule, the 
    requirements of Sec. 46.5 are triggered when a miner, who is not an 
    experienced miner, begins employment with a new employer, not 
    necessarily when the miner starts work at a different mine. In other 
    words, the final rule does not require a miner to receive new miner 
    training each time the miner moves from mine to mine, if the miner 
    remains continuously employed by the same production-operator or 
    independent contractor.
    
    Section 46.6  Newly Hired Experienced Miner Training
    
        Section 46.6 of the final rule, like the proposal, addresses 
    training requirements for ``newly hired experienced miners'' as that 
    term is now defined in Sec. 46.2. Section 46.6 lists the subject areas 
    that must be covered in training newly hired experienced miners before 
    they begin work at the mine and no later than 60 days after they begin 
    work. Final Sec. 46.6 also contains less rigorous training requirements 
    for newly hired experienced miners who are returning to the same mine 
    after an absence of 12 months or less, and allows, under certain 
    conditions, training credit to be given for practice of assigned tasks. 
    As in final Sec. 46.5, which addresses new miner training, we have used 
    a table to set forth the final rule's requirement. This is intended to 
    make it easier for you to determine the training you must provide to 
    newly hired experienced miners and when the training must be provided.
        We received numerous comments on proposed Sec. 46.6, many of which 
    addressed issues that were similar to those raised in the context of 
    new miner training under Sec. 46.5. One commenter raised a general 
    issue concerning the term ``newly hired experienced miner.'' This 
    commenter indicated that because the requirements for training under 
    this section are triggered before and after an experienced miner begins 
    work, the phrase ``newly hired'' is superfluous and should be deleted. 
    The commenter also pointed out that recent amendments to part 48 
    eliminated use of the term ``newly employed'' in Sec. 48.26 for similar 
    reasons. We agree that it may be somewhat redundant to use the term 
    ``newly hired.'' However, the final rule defines ``newly hired 
    experienced miner'' in Sec. 46.2 and retains the term in both the 
    section heading for Sec. 46.6 and the regulatory text. We have taken 
    this approach to emphasize and make clear that this section applies 
    only to experienced miners at the time they begin employment with a 
    production-operator or independent contractor.
        Proposed Sec. 46.6(a) would have required you to train newly hired 
    experienced miners in four subject areas before they begin work but did 
    not specify a minimum amount of time to be spent on this pre-work 
    training. One commenter who addressed this aspect of the proposal 
    supported minimum courses of pre-work instruction as in Sec. 48.26. 
    Another commenter agreed that the final rule should not specify a 
    minimum number of hours for training before the miner begins work, 
    while another commenter recommended that emergency medical procedures 
    be added to the list of pre-work training requirements. Several 
    commenters strongly opposed any requirement for pre-work training for 
    experienced miners, based on the commenters' concerns over the economic 
    impact of such a requirement on small operations. Several commenters 
    also maintained
    
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    that such training is not needed for workers who already have mining 
    knowledge and experience. A few other commenters recommended that the 
    final rule require only mine-specific hazard awareness training for 
    experienced miners. Some of these commenters suggested that we should 
    require only limited training on such subjects as company policies, 
    safety and environmental response plans, hazard recognition and 
    avoidance, and ``walkaround'' and task training.
        Although section 115 of the Mine Act specifically requires that 
    miner training regulations address training for new miners, there is no 
    express statutory directive that we promulgate training regulations for 
    newly hired experienced miners. However, we have concluded that 
    experienced miners should receive orientation on the mining environment 
    in general and be instructed in specific potential hazards at a mine 
    before they begin work there, and the final rule reflects this 
    conclusion.
        For the same reasons outlined in today's preamble discussion on 
    final Sec. 46.5(b) for new miners, we are requiring training on seven 
    subject areas before newly hired experienced miners begin work at a 
    mine. We believe that all miners beginning employment with a 
    production-operator or independent contractor, whether experienced or 
    not, should receive instruction in these critical areas. Unlike final 
    training requirements for new miners, however, final Sec. 46.6 does not 
    specify a minimum length of time that must be devoted to pre-work 
    training for newly hired experienced miners. This conclusion is based 
    primarily on the fact that experienced miners have far greater 
    variability in their occupational experience, skills, and knowledge 
    than untrained workers who are new to mining. The scope and amount of 
    training needed by a newly hired experienced miner is more dependent on 
    the occupational experience of the miner, the work duties that the 
    miner will perform, and the methods of mining and workplace conditions 
    at your mine. Clearly, if an experienced miner received training on a 
    subject, such as the statutory rights of miners, within the last year, 
    you would not need to spend as much time on that subject as you would 
    for a new miner. Similarly, a newly hired experienced miner would not 
    require much training on the health and safety aspects of an assigned 
    task in which the miner has 15 years' prior experience. You are in the 
    best position to assess the amount of training time needed to ensure 
    the miner is adequately trained before he or she begins work at your 
    mine, and the final rule is consistent with this. The final rule allows 
    you to tailor the newly hired experienced miner training to the 
    individual miners and concentrate the training on appropriate areas. 
    For these reasons, it would be impractical and inappropriate for us to 
    impose a minimum hour requirement for pre-work training for newly hired 
    experienced miners.
        For the same reasons as those stated in the preamble discussion of 
    final Sec. 46.5(b), the final rule includes instruction on emergency 
    medical procedures as a required pre-work training subject under final 
    Sec. 46.6(b)(3). In addition, we have revised the final rule from the 
    proposal so that the pre-work training subject language in final 
    Sec. 46.6(b)(1) and (2) for newly hired experienced miners is 
    consistent with that in final Sec. 46.5(b)(1) and (2) for new miners 
    (e.g., clarified that the mine tour in paragraph (b)(1) is 
    ``walkaround'' training, and provided examples of potentially hazardous 
    conditions on which training may be given in paragraph (b)(2)).
        The proposal would have required you to provide annual refresher 
    training to newly hired experienced miners on an accelerated schedule--
    within 90 days after they begin their assigned work duties. The 
    proposal would also have required that the refresher training cover 
    four specified subjects.
        A few commenters supported the proposed requirement that miners 
    receive annual refresher training within the 90-day period after 
    employment. One of these commenters stated that MSHA accident and 
    injury data show that a significant number of deaths and injuries occur 
    during miners' initial periods of employment. In contrast, a 
    significant number of commenters objected to the inclusion of annual 
    refresher training as part of the training requirements for newly hired 
    experienced miners. Many of these commenters also opposed the 90-day 
    deadline for the training.
        One commenter who opposed the proposed requirements stated that 
    experienced miners at mines covered by the rule should receive the same 
    training within the same time periods as part 48 requires for 
    experienced miners. Generally, Sec. 48.26 requires operators to give 
    pre-work instruction on specified subjects for all experienced miners, 
    except miners returning to the same mine following an absence of 12 
    months or less. Part 48 also requires that experienced miners returning 
    to mining after an absence of five years or more must receive this pre-
    work training in no less than eight hours.
        One commenter recommended that the 90-day period in proposed part 
    46 be increased to 120 days in the final rule to provide a greater 
    opportunity for operators to train miners during the normal cycle of 
    refresher training and to credit the eight-hour refresher requirement 
    with smaller training sessions. However, given the high employee 
    turnover rate in the mines covered by the final rule, most commenters 
    maintained that the refresher training requirement would create 
    significant scheduling problems for small- to medium-sized mine 
    operators, who would be forced to hold multiple refresher training 
    sessions. Commenters stated that small operators do not have the 
    resources to provide an eight-hour annual refresher training course to 
    each newly hired experienced miner on a schedule that varies from the 
    normal refresher training cycle. In addition, commenters asserted that 
    refresher training was not necessary if the miner had received 
    refresher training at another mine within the previous year or if 
    miners receive initial pre-work training coupled with task training.
        One commenter pointed out that it would not be efficient to require 
    smaller and more frequent training sessions, which the commenter 
    believed was the practical effect of the refresher training 
    requirement. Another commenter noted that the proposed requirement 
    would necessitate breaking up work crews on a frequent basis and 
    assigning other workers to fill in for the absent miner being trained. 
    This commenter believed this would have an adverse impact on safety at 
    those workplaces.
        We have carefully considered the comments submitted on proposed 
    Sec. 46.6(b) and agree that a requirement for eight hours of refresher 
    training on an accelerated schedule for newly hired experienced miners 
    would create unnecessary burdens for many operators, without providing 
    a clear benefit to the health and safety of miners. For these reasons, 
    the final rule does not adopt the proposed refresher training 
    requirement for experienced miners. Instead, final Sec. 46.6(c) 
    provides that newly hired experienced miners must receive training on 
    self-rescue and respiratory devices if they are used at the mine. This 
    is in addition to the pre-work training requirements under final 
    Sec. 46.6(b), which must also address site-specific hazards at the 
    mine.
        We do not agree with the commenter who recommended that experienced 
    miner training requirements in part 46 be made identical to Sec. 48.26. 
    As stated elsewhere in this preamble, the conditions and workforce at 
    the mines
    
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    covered by part 46, as well as the resources available to small 
    operations, are different from those at mines covered by part 48. The 
    final rule requires initial training for these miners before they begin 
    work, as well as training on additional subjects no later than 60 days 
    after they begin work. This will ensure that these miners have the 
    appropriate orientation and instruction before and shortly after they 
    begin work, to prepare them to work in a safe and healthful manner at 
    their new places of employment.
        As mentioned above, the final rule requires that newly hired 
    experienced miner training on the specified subjects be completed no 
    later than 60 days after the miner begins work. The 60-day deadline is 
    consistent with a similar deadline for completion of the training 
    subjects for new miners under final Sec. 46.5(c). This responds to some 
    commenters who were concerned that it was confusing to have different 
    deadlines for similar training for new miners and experienced miners. 
    Additionally, under final Sec. 46.4(e), operators may credit short 
    training sessions towards experienced miner training as long as they 
    are documented properly.
        Some commenters recommended that the final rule include a provision 
    for newly hired experienced miners similar to the proposed provision 
    that would allow new miners to practice under the ``close supervision'' 
    of a competent person to satisfy the requirement for training on the 
    health and safety aspects of an assigned task. According to one 
    commenter, there is no justification for requiring more of experienced 
    miners if they can demonstrate through practice, to the satisfaction of 
    a competent person, that they are familiar with the health and safety 
    aspects of an assigned task. We agree with this commenter, and 
    Sec. 46.6(d) of the final rule specifically allows experienced miners 
    to practice as part of the training on the health and safety aspects of 
    a task, under the close observation of a competent person. As discussed 
    in the preamble for final Sec. 46.5(e), the final rule replaces the 
    term ``close supervision'' with the term ``close observation.''
        Final Sec. 46.6(e) is new to the final rule and makes clear that 
    the scope of training for newly hired experienced miners is not limited 
    to the subjects listed in Sec. 46.6 (b) and (c). The courses listed in 
    these paragraphs are only minimum courses of instruction. Operators 
    should tailor their newly hired experienced miner training program to 
    their specific mining operations and the needs of the individual 
    miners.
        Final Sec. 46.6(f) adopts language that was proposed in 
    Sec. 46.6(c). Under this provision, you are not required to provide the 
    training specified under Sec. 46.6 (b) and (c) if the newly hired 
    experienced miner returns to your mine after an absence of 12 months or 
    less. The final rule requires, that, before the miner begins work, a 
    competent person inform the miner of changes at the mine that occurred 
    during the miner's absence that could endanger his or her safety or 
    health. This provision was adopted from recent revisions to Sec. 48.26. 
    A miner's absence of 12 months or less does not warrant requiring the 
    miner to repeat experienced miner training at the same mine. Instead, 
    the final rule treats the returning miner almost as though he or she 
    never left. Consistent with this approach, the returning miner must 
    receive any annual refresher training that was missed during his or her 
    absence, no later than 90 days after the miner starts work. We received 
    little comment on this aspect of the proposal. However, one commenter 
    was concerned that miners who returned to a mine after an absence of 
    more than 12 months would not be informed about changes at the mine 
    that occurred during his or her absence. Although the final rule does 
    not specifically require that a miner be informed of such changes, the 
    final rule does require that any experienced miner returning to the 
    same mine after an absence greater than 12 months receive newly hired 
    experienced miner training under Sec. 46.6. We expect that this 
    training would cover any changes at the mine that would have an impact 
    on the miner's health or safety.
        Proposed Sec. 46.6(d) would have allowed miners who are employees 
    of independent contractors and who work at the mine on a short-term 
    basis, such as drillers or blasters, to receive either newly hired 
    experienced miner training or site-specific hazard training. We 
    received considerable adverse comment on this aspect of the proposal. 
    One commenter believed that operators, given the choice, would always 
    opt to provide contractors with hazard training, not the more extensive 
    experienced miner training under Sec. 46.6. This commenter was 
    concerned that contractors would receive little training under part 46. 
    In fact, under the final rule, independent contractor employees who are 
    ``miners'' must receive comprehensive training, either as ``new 
    miners'' under Sec. 46.5 or as ``newly hired experienced miners'' under 
    Sec. 46.6. These workers must also receive appropriate task training 
    under Sec. 46.7, annual refresher training under Sec. 46.8, and site-
    specific hazard awareness training under Sec. 46.11.
        Several commenters correctly pointed out that these contractor 
    employees are not ``newly hired'' because they are still employed by 
    the same employer, in this case, the independent contractor. Commenters 
    contended that these miners should receive only site-specific hazard 
    awareness training for each mine where they work and not be required to 
    repeat experienced miner training under Sec. 46.6 each time they move 
    from mine to mine. For the same reason, other commenters requested that 
    we clarify that miners who move among mines operated by the same 
    company are not ``newly hired experienced miners'' for training 
    purposes. Commenters noted that the proposed rule was unclear on 
    whether the event that triggers newly hired experienced miner training 
    is the miner beginning work at a new mine or the miner beginning 
    employment with a new employer.
        We agree that it is unnecessary for miners to receive newly hired 
    experienced miner training whenever they move from one mine to another, 
    while remaining employed by the same employer, whether production-
    operator or independent contractor. In response to these comments, the 
    final rule includes a definition of the term ``newly hired experienced 
    miner,'' and provides that experienced miners who move from one mine to 
    another, such as drillers and blasters, but who remain employed by the 
    same production-operator or independent contractor are not considered 
    newly hired experienced miners.
        You should be aware that final Sec. 46.11, which addresses site-
    specific hazard awareness training, requires you to provide miners who 
    move from one mine to another mine while remaining employed by the same 
    production-operator or independent contractor with site-specific hazard 
    awareness training for each mine.
    
    Section 46.7  New Task Training
    
        Section 115(a)(4) of the Mine Act provides that:
    
        * * * any miner who is reassigned to a new task in which he has 
    had no previous work experience shall receive training in accordance 
    with a training plan approved by the Secretary . . . in the safety 
    and health aspects specific to that task prior to performing that 
    task.
    
        This section of the final rule implements this statutory provision 
    by requiring operators to provide miners with training for new tasks 
    and new health and safety information concerning assigned tasks before 
    the miners perform the tasks. This section
    
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    generally adopts the proposed provisions, but includes several changes 
    from the proposal in response to comments.
        In developing final Sec. 46.7, we have attempted to address the 
    comments received and to develop practical requirements for effective 
    health and safety training programs at the mines covered by this rule. 
    Although Sec. 46.7 will allow you greater flexibility in the 
    implementation of new task training to fit your specific mining 
    operations and workforce, we have determined that the new requirements 
    will not reduce protection afforded to surface nonmetal miners under 
    similar standards in existing part 48. While the approach taken under 
    part 46 may be less structured and more flexible than part 48, the 
    ultimate result will be the effective health and safety training of 
    surface nonmetal miners who are assigned new tasks or whose assigned 
    tasks are modified and the modification has some impact on the health 
    and safety risks encountered by the miner.
        The task training requirements in the final rule are intended to 
    reduce the likelihood of accidents resulting from a miner's lack of 
    knowledge about the potential hazards of a task. This section requires 
    operators to provide miners with important health and safety 
    information before they perform a new or modified task. This will 
    ensure that miners are prepared to protect themselves and to avoid 
    endangering other workers at the mine.
        Many commenters supported the task training requirements in the 
    proposed rule. These commenters stated that employees need to be aware 
    of the hazards and the risks associated with the jobs or tasks that 
    they perform and be familiar with the systems, tools, equipment, and 
    procedures required to control, reduce, or eliminate hazards. Several 
    commenters noted that proper task training is the key to preventing 
    injuries and fatalities.
        Some commenters recommended that new task training requirements be 
    patterned after the requirements in part 48. Under part 48, a program 
    for training on certain enumerated tasks must include instruction, in 
    an on-the-job environment, in the health and safety aspects and safe 
    operating procedures of the task; supervised practice during 
    nonproduction times is also required. Other commenters were supportive 
    of the performance-oriented requirements in the proposed rule.
        The final rule, like the proposal, does not include detailed 
    requirements for task training. This is intended to allow you to design 
    task training programs that are suitable for your workforce and your 
    operation. We expect that effective new task training will include, at 
    a minimum, instruction in the elements of the task, including hands-on 
    training, and an explanation of the potential health or safety hazards 
    associated with the task and ways of minimizing or avoiding exposure to 
    these hazards.
        Many commenters stated that effective task training includes a 
    combination of different types of training, such as classroom 
    instruction, demonstration by the competent person, practical hands-on 
    training, and evaluation of the miner's ability to apply the training 
    in the workplace. We agree with these commenters, and the flexibility 
    provided in the final rule is intended to allow each operator to design 
    and implement an effective task training program that is suitable for 
    each miner.
        Final Sec. 46.7(a) and (b) adopt the requirements of proposed 
    Sec. 46.7(a). The requirements in these two paragraphs were included in 
    the proposal in a single paragraph but have been separated into two 
    paragraphs in the final rule for clarity.
        Section 46.7(a) of the final rule requires you to provide any miner 
    who is reassigned to a new task in which he or she has no previous work 
    experience with training in the health and safety aspects and safe work 
    procedures specific to that new task. This training must be provided 
    before the miner performs the new task. This is adopted with a minor 
    change from the proposed rule.
        The final rule provides that task training must be provided to any 
    miner who is ``reassigned to a new task.'' The proposal would have 
    required task training for a miner who was ``assigned'' to a new task. 
    This terminology is used in the final rule in response to commenters 
    who indicated they were confused about the relationship between new 
    task training requirements in this section and new miner training 
    requirements in proposed Sec. 46.5. This language is intended to 
    clarify that task training requirements in this section supplement the 
    new task training-referred to as ``instruction in the health and safety 
    aspects of assigned tasks''--that miners must receive as part of new 
    miner training and newly hired experienced miner training under 
    Secs. 46.5 and 46.6. This change is made in response to several 
    commenters who pointed out that operators must provide miners with 
    instruction in ``health and safety aspects of the task'' as part of the 
    24 hours of new miner training. These commenters questioned what the 
    distinction was between that aspect of new miner training and task 
    training under this section. Another commenter observed that the 
    proposed rule seemed to suggest that new miner training must include 
    training in the health and safety aspects of all tasks that he or she 
    will perform in the first year of employment. This commenter emphasized 
    that task training is an ongoing effort, conducted each time a miner 
    will perform a task for the first time.
        Task training should in fact be an ongoing process, and neither the 
    proposed rule nor the final rule requires a new miner to receive 
    instruction, as part of new miner or newly hired experienced miner 
    training, in every task he or she will perform in the first year. We 
    agree that the final rule should clarify the relationship between task 
    instruction for new miners under Sec. 46.5 and for newly hired 
    experienced miners under Sec. 46.6, and new task training under 
    Sec. 46.7. Training in the health and safety aspects of tasks for new 
    miners under Sec. 46.5 and for newly hired experienced miners under 
    Sec. 46.6 is the same type of training as new task training under this 
    section. Newly hired miners must receive task training in the tasks 
    they will perform, either as part of new miner training or newly hired 
    experienced miner training, as appropriate. After miners have received 
    this initial training and they are ``reassigned'' to a new task (from 
    the task that they were initially assigned and for which they already 
    received task training), final Sec. 46.7(a) requires task training in 
    that newly assigned task before the miner performs it.
        Final Sec. 46.7(b) requires you to provide task training if a 
    change occurs in a miner's task that affects the health and safety 
    risks encountered by the miner. This requirement has been adopted with 
    some change from the proposed rule. The final rule clarifies that a 
    requirement for task training is triggered by changes that affect the 
    health and safety risks encountered by the miner, rather than by a 
    change in the assigned task. This means that task training is required 
    whenever any change in the task could impact the health and safety 
    conditions under which the miner works.
        Many commenters questioned what type of change in a task would 
    trigger the requirement for task training. Although it would be 
    impractical to compile a comprehensive list of such changes, we can 
    provide a few examples. Task training is intended to ensure that miners 
    receive new training before they are exposed to new health and safety 
    hazards, so that they can avoid, control, or eliminate potential 
    hazards as they perform their job. Such a change could involve a 
    modification
    
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    to a piece of equipment that introduces new potential safety hazards 
    for the miner that operates the equipment. For example, the controls on 
    a loader may be modified, causing the loader to respond more quickly. 
    The miners who operate this equipment must be informed of the 
    modifications to the controls and must be given task training that 
    allows them to become familiar and comfortable with the new controls 
    before they begin to use the loader for work. Another example would be 
    a change to a piece of equipment that increases the occupational noise 
    or dust exposure levels for the miner who operates it. Before the miner 
    is exposed to the increased noise or dust hazards, the operator must 
    ensure that the miner is informed of the new health concerns and 
    receives instruction in how to avoid, control or eliminate the new 
    health concerns. In any case, if an operator is in doubt as to whether 
    a change warrants additional task training, the operator should opt in 
    favor of providing the training.
        Final Sec. 46.7(c) provides that you are not required to provide 
    task training under paragraphs (a) and (b) to miners who have received 
    training in a similar task or who have previous work experience in the 
    task, and who can demonstrate the necessary skills to perform the task 
    in a safe and healthful manner. The final rule, unlike the proposal, 
    requires you to observe that the miner can perform the task in a safe 
    and healthful manner to determine whether the miner needs task 
    training. This is intended to prevent unnecessary or duplicative 
    training, while ensuring that miners are adequately trained for 
    unfamiliar tasks. For example, if an equipment operator is already 
    trained in the health and safety aspects of loader operation, has been 
    evaluated, and has demonstrated the ability to perform the duties of a 
    loader operator, there is no reason to require the equipment operator 
    to repeat task training.
        In the preamble to the proposed rule, we indicated that we intended 
    that task training would not be required for miners who have performed 
    a task before and who are able to safely perform the task. We noted 
    that you must first determine that task training is not necessary, 
    typically by having the miner demonstrate that he or she is able to 
    perform the task safely. A number of commenters questioned this 
    statement in the preamble, believing that such a requirement would be 
    too restrictive. These commenters were of the opinion that a miner's 
    experience, references, or other information could provide a 
    satisfactory basis for a conclusion that task training is not required. 
    These commenters recommended that the final rule clarify that a 
    demonstration is not required in all cases to determine whether task 
    training is needed and that the basis of the determination is within 
    the discretion of the operator.
        We do not agree with these commenters. Although a miner may be able 
    to document prior work experience, this does not ensure that the miner 
    has retained sufficient expertise in the task to make task training 
    unnecessary. Under part 48, task training is not required if the miner 
    has either been trained in the task or has performed the task, and has 
    demonstrated safe operating procedures for the task within the last 12 
    months. We agree with this approach, and the final rule reflects our 
    conclusion that an actual demonstration of a miner's ability to perform 
    a task safely and healthfully will guarantee that miners who need task 
    training will receive it. A paper review would not adequately ensure 
    that the miner has the current ability and knowledge to safely perform 
    the task. Operators would also be able to evaluate whether training is 
    needed on elements of the task that may be site-specific. For example, 
    a miner who is reassigned to operate a particular piece of mobile 
    equipment may have already operated the same type of equipment at 
    another mine. However, the terrain of the area where the equipment will 
    be operated at the current mine may warrant additional task training to 
    ensure that the miner can safely operate the equipment in the new 
    terrain. For these reasons, the final rule specifies that a miner must 
    make such a demonstration before an operator can determine that task 
    training is not needed. In making this determination, you must observe 
    the miner performing the task to verify that the miner has the 
    requisite knowledge and skills to perform the task safely.
        The requirements of final Sec. 46.7(d) have been adopted from the 
    proposal with some changes and provide that practice under the close 
    observation of a competent person may be used to satisfy task training 
    requirements if hazard recognition training specific to the task is 
    given before the miner performs the task. The proposal would have 
    allowed practice under the ``close supervision'' of a competent person 
    to be used to fulfill task training requirements. Commenters generally 
    supported the concept of permitting hands-on practice to fulfill the 
    requirement for task training. Commenters stated that very effective 
    and safe training in a new or modified task can include the miner 
    practicing the task while under the close observation of a competent 
    person, who instructs the individual in how to perform the task in a 
    safe manner. However, a number of commenters objected to the 
    restrictive nature of the requirement that the practice had to be 
    ``under the close supervision of a competent person.'' Some commenters 
    were concerned that in cases where the competent person was a fellow 
    miner, the competent person would not have the authority to supervise 
    or direct the work of the miner receiving the training. These 
    commenters suggested a term other than ``supervision'' be used to 
    describe the monitoring of the performance of the task. Other 
    commenters took issue with the term ``close supervision'' as well as 
    with the explanation of the requirement in the preamble to the 
    proposal. These commenters believed that ``close supervision'' was not 
    practical, because it suggested that the undivided attention of the 
    person providing the training was necessary. Some commenters 
    recommended that the person providing the training be the judge of how 
    closely the miner needs to be supervised, depending on the person's 
    understanding of the miner's knowledge and experience and of the risks 
    involved in the task.
        The final rule, in response to commenters, allows practice under 
    the ``close observation of a competent person'' to be used to fulfill 
    some of the task training required by this section. This allows the 
    miner to gain experience in the task and to learn how to avoid the 
    hazards presented by the performance of the task in the surrounding 
    environment. ``Close observation'' means that the competent person is 
    in the immediate vicinity of the miner and is watching the actions of 
    the miner being trained to make sure that the miner is performing the 
    task in a safe and healthful manner. The nature of the task will 
    determine the degree of attention that is needed, and the level of 
    observation should be commensurate with the risks inherent in the task 
    being performed. The competent person who is observing the miner should 
    also be assessing the miner's proficiency in performing the task, as 
    part of the training itself as well as the competent person's 
    evaluation of whether the training is effective.
        The final rule includes the additional requirement that the miner 
    must be provided with hazard recognition training for the task before 
    he or she begins to practice the task. This is similar to the provision 
    for practice for new miners in final Sec. 46.5(e). Without a 
    requirement for the miner to receive this important information, the 
    miner would learn by trial and error, an approach that
    
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    relies on mistakes (which can often involve accidents, injuries, and 
    fatalities) for learning to occur. For example, if you assign a miner 
    to operate a loader for the first time, you should explain that the 
    loader can be tipped over much more easily than other vehicles the 
    miner may have operated. The potential for the loader to tip over could 
    be explained with the use of photographs, illustrations, or graphs. 
    This tip-over potential cannot be safely taught through hands-on 
    training, because it would require the miner to tip over the loader.
        The most effective training program will include a combination of 
    training methods and be flexible enough to apply in different work 
    environments and for miners with varying levels of education and work 
    experience. Classroom training is one way that preliminary instruction 
    can be provided as a prelude to practical hands-on training exercises.
        Final Sec. 46.7(e), like the proposal, allows you to credit task 
    training provided under this section toward new miner training, as 
    appropriate. Many commenters supported this aspect of the proposal, and 
    it has been adopted unchanged into the final rule. We envision that 
    crediting would occur when a new miner's work assignment changes during 
    the first 90 days of employment. The miner would have received training 
    in the health and safety aspects of assigned tasks before he or she 
    begins work under Sec. 46.5(b)(4). If the miner is reassigned to a new 
    task within the initial 90-day period, training in the new task given 
    to comply with Sec. 46.7 could be credited toward the 24 hours of new 
    miner training.
        Some commenters recommended that the final rule allow task training 
    to be credited to newly hired experienced miner training. However, we 
    have not included a specific provision for this in the final rule. 
    Because the final rule does not specify a minimum number of hours for 
    newly hired experienced miner training, there is no need to explicitly 
    provide for task training to be credited toward newly hired experienced 
    miner training.
        We solicited comment in the preamble to the proposal on whether the 
    final rule should allow task training to be credited toward annual 
    refresher training requirements. Although some commenters supported 
    credit for task training to satisfy annual refresher training, other 
    commenters strongly opposed it. These commenters stated that miners who 
    were trained on a number of different tasks during the course of a year 
    could accumulate enough hours of task training to satisfy the annual 
    refresher requirement, yet the miner would not have received refresher 
    training on other hazards and important health and safety concerns.
        We agree with those commenters who recommended against allowing 
    task training to be credited towards annual refresher training. Task 
    training is designed to ensure that the miner can perform a new or 
    modified job in a safe manner and may only be relevant to a small 
    portion of the miner's work at the mine. In contrast, refresher 
    training is intended to reinforce previous training and enhance the 
    miner's general knowledge and skills so that he or she can work in a 
    safe and healthful manner at all times. For these reasons, the final 
    rule does not allow crediting of task training toward the annual 
    refresher training requirements.
        Finally, one commenter recommended that the final rule specify that 
    task training must be conducted by a person who is experienced in the 
    task. The final rule does not adopt this specific recommendation, 
    because the final rule requires that training must be given by a 
    ``competent person,'' defined as a person with the ability, training, 
    experience, or knowledge to provide training to miners in his or her 
    area of expertise. We believe that this definition adequately addresses 
    the necessary level of expertise, and, for these reasons, the 
    requirement recommended by the commenter is not needed and has not been 
    adopted in the final rule.
    
    Section 46.8  Annual Refresher Training
    
        This section of the final rule addresses requirements for refresher 
    health and safety training for miners. Section 115(a)(3) of the Mine 
    Act requires all miners to receive at least eight hours of refresher 
    training no less frequently than once every 12 months. The Act does not 
    specify the subject areas that must be covered as part of this 
    training. In the Federal Register notice announcing the public hearings 
    for the proposed rule, we requested comment on whether the final rule 
    should require that specific subject areas be covered by refresher 
    training, and if so, what subjects should be required.
        Commenters generally supported the concept of annual refresher 
    training. Commenters recognized that refresher training provides miners 
    with an important review of information that helps them to minimize the 
    health and safety risks at their workplaces. The annual refresher 
    training requirements in the final rule are intended to reduce the 
    likelihood of accidents and illnesses by reinforcing previous training 
    and enhancing miners' ability to work in a safe and healthful manner.
        The final rule takes a performance-oriented approach to annual 
    refresher training to allow operators, particularly small operators, to 
    direct their training resources to subjects that are relevant to their 
    workforce and operations. The proposed rule would have required that 
    you provide each miner with no less than eight hours of refresher 
    training at least once every 12 months. A few commenters believed that 
    eight hours of training every year was an excessive requirement for 
    many small operations and that this requirement appears to assume that 
    all mining operations are large and complex. Another commenter 
    recommended that the final rule require refresher training every 24 
    months, not every 12 months.
        The Mine Act is very specific in its requirement that miners 
    receive no less than eight hours of refresher training at least every 
    12 months. We therefore have no discretion to adjust or reduce these 
    minimum requirements.
        Several commenters maintained that the language in the proposed 
    rule suggested that miners must receive all of their refresher training 
    in one eight-hour session. One commenter stated that eight hours of 
    refresher training on one day a year, or even over several days within 
    a short period of time leaves a lot to be desired. This commenter 
    favored shorter training sessions over a longer period of time. A 
    number of commenters recommended that the final rule make clear that 
    miners may receive refresher training in shorter sessions over the 12-
    month period.
        We agree that providing refresher training in shorter installments 
    over 12 months is an appropriate way for operators to satisfy refresher 
    training requirements under the final rule. We did not intend the 
    language of the proposed rule to leave you with the impression that 
    such an approach would be unacceptable. We have attempted to clarify 
    this in the final rule. The final rule does not adopt the language of 
    the proposed rule that requires refresher training to be completed 
    ``once every 12 months.'' Instead, under final Sec. 46.8(a)(1), you 
    must provide each miner with no less than eight hours of annual 
    refresher training no later than 12 months after the miner begins work 
    at the mine, or no later than March 30, 2001, whichever is later. 
    Thereafter, final Sec. 46.8(a)(2) requires you to provide each miner 
    with eight hours of training no later than 12 months after the previous 
    annual refresher training was completed. Under the final rule, you must 
    provide miners at your mine with annual refresher
    
    [[Page 53119]]
    
    training no later than 6 months after the rule has gone into effect, 
    unless the miner is newly employed at the mine. In that case, the miner 
    has 12 months from the date of employment to complete the first 
    installment of refresher training.
        The deadline of six months after the rule's effective date for 
    completion of annual refresher training is intended to ensure that 
    there is no question as to when miners must receive the first 
    installment of annual refresher training under the final rule. We 
    considered allowing one year after the effective date for annual 
    refresher training to be completed, which would be two years after 
    publication of the final rule in the Federal Register. We determined 
    that a one-year deadline beyond the effective date would result in a 
    significant delay in miners receiving this training. We believe that it 
    is important for those miners who may not have been receiving regular 
    refresher training to be provided with this training as soon as 
    practicable. However, we recognize that many operators need time to 
    prepare for compliance with the final rule. For these reasons, we have 
    allowed six months beyond the effective date for completion of the 
    first eight-hour installment of refresher training.
        Under the final rule, you may provide annual refresher training in 
    one eight-hour session once every 12 months. You may also satisfy the 
    refresher training requirement by providing miners with smaller blocks 
    of training over the entire year, so long as the total training time 
    adds up to at least eight hours.
        Some commenters stated that the 12-month deadline should begin to 
    run only after a miner has completed 24 hours of new miner training or 
    an experienced miner has completed newly hired experienced miner 
    training. For example, if a new miner begins work on the first of 
    January 2001 and completes new miner training on March 31, 2001, these 
    commenters believe that the deadline for the miner to complete eight 
    hours of annual refresher training should be March 2002 rather than 
    January 2002. Other commenters pointed out that such an approach would 
    unnecessarily delay the annual refresher training for a new miner. We 
    agree with commenters who were concerned about a delay in miners 
    receiving annual refresher training, and we are not persuaded by 
    commenters recommending that the 12-month period be extended, 
    particularly for new miners in their first year at the mine. Timely 
    refresher training serves to reinforce the initial training received by 
    new miners, who are more vulnerable to accidents and injuries than 
    experienced miners. For these reasons, final Sec. 46.8(a)(1) makes 
    clear that all miners, whether new miners or newly hired experienced 
    miners, must receive their first eight-hour installment of refresher 
    training no later than 12 months after they begin work at the mine.
        The proposed rule would have required refresher training to cover 
    instruction on changes at the mine that could adversely affect the 
    miner's health and safety. Under the proposal, mine operators would 
    have discretion to select other training topics, although the proposal 
    did include a list of suggested training topics.
        Most commenters believed that the subjects covered in refresher 
    training should not be mandated, but that operators should instead have 
    the discretion to select subjects that are relevant to the health and 
    safety needs of the miners at their particular mining operation. 
    Several commenters indicated that they believed this flexibility could 
    only enhance worker safety, not detract from it. Many of these 
    commenters indicated that training subjects could vary from year to 
    year, based on such factors as the mine's accident and injury 
    experience.
        Final Sec. 46.8 (b) and (c) generally adopt the requirements of 
    proposed Sec. 46.8(b). Section 46.8(b) of the final rule requires you 
    to provide annual refresher training on changes at the mine that affect 
    the health and safety risks encountered by the miners in performing 
    their work. Commenters generally supported this requirement in the 
    proposed rule. However, some commenters were concerned that information 
    on changes at the mine should be provided to the miners as soon as the 
    operator becomes aware of the change or before the operator implements 
    a planned change. These commenters stated that this information should 
    not be communicated to miners on a 12-month rotation. We agree with 
    these commenters that operators should convey such information to 
    miners as soon as possible. However, this information must be 
    reiterated during refresher training to ensure that miners are 
    adequately informed of changes in conditions that could affect their 
    health or safety.
        Commenters generally recommended that we provide examples in the 
    preamble to assist operators in understanding their compliance 
    responsibilities. Some commenters questioned what type of changes would 
    fall within the requirements Sec. 46.8(b) and must be addressed as part 
    of refresher training. One example would be if you plan to change the 
    traffic patterns at your mine. Other examples include the introduction 
    of new or retrofitted equipment into the work environment, or a new 
    blasting schedule.
        Final Sec. 46.8(c) clarifies that refresher training must also 
    address other health and safety subjects that are relevant to mining 
    operations at the mine. The proposal would simply have provided that 
    training may include instruction on certain subjects and listed several 
    examples. The final rule also includes a list of possible subjects, 
    indicating that training may address these subjects. The language in 
    the final rule has been amended slightly to clarify that the additional 
    subjects are recommended but are not mandatory.
        In the preamble of the proposed rule, we stated that we expected 
    that you would carefully select the subjects covered in refresher 
    training at your mine, to ensure that your miners received practical 
    and useful instruction that effectively addresses the health and safety 
    conditions at your operation. We requested comments on whether the 
    final rule should include more detailed requirements or guidance for 
    refresher training programs. In addition, we specifically requested 
    comments on whether the final rule should require instruction on 
    particular topics, similar to part 48, and if so, which subjects should 
    be included.
        Several commenters stated that, although general guidelines for 
    possible training subjects were a good idea, the final rule should 
    allow operators flexibility in choosing subjects. By allowing operators 
    to identify the subjects to be covered, the relevance of the training 
    to the work environment will be increased. The commenters stated that 
    refresher training should cover subject areas relevant to the safety 
    problems at the mine. One commenter suggested that the subjects listed 
    in the proposal, which were derived from topics listed in part 48, 
    should be covered at least once every three years as part of refresher 
    training. Other commenters stated that the final rule should take the 
    approach of part 48 and include a list of required courses of 
    instruction. Several commenters recommended that the final rule list 
    the courses included in part 48 and indicate that the courses would be 
    mandatory ``where applicable.'' These commenters stated that the 
    additional language would allow operators to forgo course subjects that 
    are not applicable to their operation, giving them more time for other 
    relevant subjects. Other commenters stated that a review of health and 
    safety standards should be included in annual refresher training.
    
    [[Page 53120]]
    
        We are persuaded by commenters' recommendations that the final rule 
    afford operators flexibility in selecting subjects for refresher 
    training. Refresher training that is tailored to address subjects 
    relevant to the mine's methods of operation, equipment, accident and 
    illness history, etc., can be extremely effective. The final rule 
    reflects this determination and provides a performance-oriented 
    approach that allows you to implement a refresher training program that 
    will provide the most health and safety benefits to your miners.
        The performance-oriented approach to annual refresher training in 
    the final rule is designed to allow you to develop and implement the 
    type of training that will be most beneficial for your miners. We 
    believe this approach will enable all production-operators and 
    independent contractors to design and implement an effective annual 
    refresher training program that maximizes the impact of the required 
    training for their miners.
        The list of recommended subjects contained in final Sec. 46.8(c) 
    includes subjects that were not included in the proposed rule. The 
    final rule references subjects that address specific types of equipment 
    and work activities that have been involved in the most serious 
    accidents in the mines covered by the final rule. This list is derived 
    from our analysis of the fatal, disabling, and lost time injury data 
    from 1991 to 1998 for the mines covered by this rule. For example, the 
    final rule recommends that refresher training address the hazards of 
    mobile equipment, such as haulage trucks, service trucks, tractors, and 
    front-end loaders, because that type of equipment has been involved in 
    the most number of accidents. Equipment that follows mobile equipment 
    in the greatest number of accidents includes conveyor systems; cranes; 
    crushers; excavators; and dredges. We recommend that annual refresher 
    training address the safe operation of this equipment if you use it at 
    your mine or, if you are an independent contractor, your employees 
    operate the equipment or are exposed to its hazards.
        The final rule includes other recommended training subjects that we 
    identified based on our analysis of the injury data, including 
    maintenance and repair; material handling; fall prevention and 
    protection; and machine guarding. We intend to continue to analyze the 
    accident and injury data to identify areas that should be covered as 
    part of refresher training. In that way, we can develop relevant course 
    materials that will be useful in the training given under the final 
    rule.
        One commenter stated that it takes at least eight hours to provide 
    comprehensive first aid training. This commenter advocated a separate 
    requirement for first aid for all miners and recommended that the eight 
    hours for annual refresher training be focused on other subjects. We 
    acknowledge that comprehensive first aid training can require a 
    significant amount of time, often at least eight hours according to 
    commenters. However, for purposes of annual refresher training, the 
    final rule allows you to provide miners with a review of first aid 
    subjects, rather than extensive comprehensive first aid training. 
    Further, the requirements of the final rule are minimum requirements, 
    and the final rule does not prevent you from providing miners with more 
    than the mandated eight hours of health and safety refresher training 
    each year. In fact, we encourage you to provide as much training as 
    possible to miners to enhance their abilities to perform their assigned 
    duties without endangering themselves or others.
        A number of commenters raised the issue of whether the final rule 
    should impose a minimum duration on refresher training sessions, such 
    as 15 minutes or half an hour. This issue is also relevant to other 
    types of training and is discussed in detail in the preamble discussion 
    of final Sec. 46.4(e).
        Several commenters had general questions about the application of 
    refresher training requirements. One commenter stated that he provides 
    annual refresher training during a scheduled maintenance shutdown that 
    occurs each year in April or May. He indicated that he would like to 
    continue to provide training in this manner, even though miners could 
    receive annual refresher training 13 months after the previous year's 
    training. Our interpretation of the requirements of the Mine Act would 
    not allow such a training schedule. Miners must receive annual 
    refresher training no later than 12 months after the previous annual 
    refresher training was completed, as required by final Sec. 46.8(a)(2).
        Another commenter stated that truck drivers that come to the mine 
    to deliver or haul away materials should not be required to receive 
    eight hours of refresher training every year. This commenter indicated 
    that the drivers spend 10 minutes loading their trucks at the mine 
    site, and one to two hours delivering the load, for a total of about 
    one hour per day spent at the mine site.
        Although we are unable to give a definitive answer on this scenario 
    since we may not have all of the facts, we can provide a general 
    response. Delivery and customer or haul truck drivers, such as those 
    described by the commenter, are not included in the definition of a 
    ``miner'' in the final rule. Because the annual refresher training 
    requirements apply to miners, the drivers described by the commenter 
    would not be considered miners, and you would not be required to 
    provide them with eight hours of refresher training. However, you must 
    provide the drivers with site-specific hazard awareness training under 
    Sec. 46.11 of the final rule.
    
    Section 46.9  Records of Training
    
        This section of the final rule requires you to record and certify 
    that miners have received health and safety training under this part. 
    The final rule adopts many of the proposed provisions, but includes 
    several changes to address commenters' concerns.
        Like the proposal, the final rule requires production-operators and 
    independent contractors to record and certify the training provided to 
    miners and to provide miners with a copy of their training certificates 
    at the completion of the training. Copies of a miner's training records 
    and certificates must be provided to the miner at the termination of 
    employment, upon the miner's request. The final rule adopts the 
    flexible approach of the proposal and does not require that these 
    records and certificates be maintained on a prescribed form, but allows 
    operators the option of using alternate forms or methods to MSHA Form 
    5000-23 for making and keeping these records. The final rule, like the 
    proposal, also allows you to maintain training records and certificates 
    away from the mine site, if you have the capability of producing them 
    upon request. In response to comments, the final rule specifies when 
    records of training must be made, certified, and provided to miners. 
    Finally, the record retention period under the final rule has been 
    changed from the proposal and responds partially to commenters who 
    recommended that the final rule adopt the record retention requirements 
    of part 48.
        Section 46.9 of the final rule, unlike the proposal, references 
    both ``training records'' and ``training certificates.'' This 
    terminology recognizes that there is a distinction between a record and 
    a certificate. Operators are required to make records of miner training 
    at specified intervals, but the final rule does not require that 
    certain records be signed and certified by the person responsible for 
    training at the mine until some time after the record has been made. 
    For example, an operator who provides miners with one hour of
    
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    annual refresher training every month must record the training after 
    each session, but is not required to certify the record until miners 
    have received the full eight hours of refresher training. A training 
    ``record'' made under final Sec. 46.9(c) becomes a training 
    ``certificate'' after the training has been certified under 
    Sec. 46.9(b)(5). To make clear that the provisions of final Sec. 46.9 
    apply to both ``records'' and ``certificates,'' the final rule includes 
    both terms, where appropriate.
        A number of commenters addressed the issue of recordkeeping. Many 
    commenters supported the flexibility in recordkeeping allowed by the 
    proposal, stating that recordkeeping requirements beyond those included 
    in the proposal would be particularly excessive and onerous for small 
    operators. Other commenters believed that the proposed recordkeeping 
    requirements were too burdensome for small operators. One commenter 
    recommended that recordkeeping requirements under the final rule be 
    flexible and recognize that the offices of many small operators are 
    their homes, and these operators typically do not maintain their 
    records electronically.
        Final Sec. 46.9(a) requires you to record and certify that each 
    miner has received training required under this part. Consistent with 
    the Mine Act requirement that certifications be kept on a form approved 
    by the Secretary of Labor, the final rule provides that training 
    records and certificates may be kept on MSHA Form 5000-23, which is the 
    approved form used by operators under part 48 regulations to certify 
    that training has been completed. If you choose to use Form 5000-23, 
    you should be aware that the form was not specifically designed for use 
    under part 46. For that reason, you should take care to include on that 
    form all the information required by part 46. However, under the final 
    rule, as under the proposal, you may also use any other format that 
    contains the minimum information listed in paragraph (b) of this 
    section.
        Commenters generally supported the proposal allowing operators the 
    flexibility to choose the appropriate form for their training records. 
    However, one commenter strongly opposed the use of MSHA Form 5000-23, 
    stating that the form is confusing and fraught with ambiguity. This 
    commenter recommended that Form 5000-23 be revised, and until that time 
    it would not be technically feasible to use the form. Another commenter 
    recommended revision of Form 5000-23 to make it more appropriate for 
    the recordkeeping requirements of part 46 and also easier for small 
    operators to use.
        Although we do not agree that Form 5000-23 is so confusing as to be 
    unusable, the final rule does not mandate the form's use. An operator 
    may elect not to use that form, and instead may adopt or develop any 
    other form, so long as the information required by final Sec. 46.9(b) 
    is included on the form.
        The requirements of final Sec. 46.9(a) allow those of you who may 
    already be using MSHA Form 5000-23 for recording training to continue 
    to use this form under the final rule. However, the final rule allows 
    operators, particularly small operators who are less likely to have 
    formal health and safety programs at their mines, the flexibility to 
    use other formats that are compatible with the information requirements 
    specified in paragraph (b). This provision has been adopted unchanged 
    from the proposed rule. Under this paragraph, a form is approved by us 
    if it contains the information listed in paragraphs (b)(1) through 
    (b)(5), including--
        (1) The printed full name of the person who received the training;
        (2) The type of training that was received, the duration of the 
    training, the date the training was received, and the name of the 
    competent person who provided the training; and
        (3) The name of the mine or independent contractor, MSHA mine 
    identification number or independent contractor identification number, 
    and the location where the training was given.
        In response to comments, the final rule requires the ``printed full 
    name'' of the person who received the training, but does not 
    specifically require the first, middle, and last name, as the proposal 
    would have required. One commenter was concerned that many miners used 
    shortened forms of proper names or other nicknames to identify 
    themselves and that some people never go by their first names and 
    middle initials. Another commenter stated that the final rule should 
    allow the use of the name on a miner's payroll record, even though it 
    may not be the miner's full given name. These commenters believed that 
    requiring that training records include all three given names was 
    unnecessary and could result in confusion. In response, the final rule 
    does not specifically require that the record include the trainee's 
    first, middle, and last name. Instead, the miner's ``full name'' must 
    be included. Our expectation is simply that the name indicated on the 
    training form allows ready identification of the miner who received the 
    training.
        Final Sec. 46.9(b)(3) requires, where appropriate, the training 
    record to include the name of the independent contractor and MSHA 
    independent contractor identification number. This requirement was not 
    included in the proposal but has been added to the final rule to be 
    consistent with the fact that independent contractors with employees 
    who are miners as well as production-operators are responsible for 
    training for their miner employees.
        Section 46.9(b)(4) of the final rule, like the proposal, also 
    incorporates the provisions of section 115(c) of the Mine Act and 
    requires that the form include the statement, printed on the form in 
    bold letters and in a conspicuous manner, that ``false certification is 
    punishable under section 110(a) and (f) of the Federal Mine Safety and 
    Health Act.'' Section 110(a) of the Mine Act provides that an operator 
    who violates a mandatory standard or any other provision of the Act 
    shall be assessed a civil penalty of up to $55,000. Section 110(f) of 
    the Act provides that a person who makes a false statement, 
    representation, or certification in records or other documents filed or 
    maintained under the Act may be subject to criminal prosecution and 
    fined up to $10,000 and imprisoned for up to 5 years.
        Under Sec. 46.9(b)(5), the form must also include the statement ``I 
    certify that the above training has been completed,'' signed by the 
    person designated in the MSHA-approved training plan as responsible for 
    health and safety training. This has been adopted without change from 
    the proposal.
        In the proposed preamble, we solicited comment on whether miners 
    should be required to sign their training certificates and whether 
    other persons besides the person responsible for training at the mine 
    should be allowed to sign the certificates. In response, one commenter 
    stated that miners should not be required to sign certificates, but 
    that operators or the operator's designee should be allowed to make the 
    certification. Another commenter stated that the operator is ultimately 
    responsible for providing training and should be responsible for 
    certifying that training has been received.
        The final rule adopts the proposed requirement that the person 
    designated by the operator as responsible for health and safety 
    training certify that the training has been received as indicated in 
    the record. Although the competent person who provides the training 
    would have the knowledge to certify that the training reflected on the 
    certificate was
    
    [[Page 53122]]
    
    provided, we agree with commenters who recommended that the operator or 
    the operator's designee be responsible for training certification. For 
    these reasons, the final rule provides that the individual who oversees 
    health and safety training at the mine must verify and certify that 
    required training has been provided.
        The final rule does not require our approval of your recordkeeping 
    format. Your records must simply include the minimum information listed 
    in the final rule. This allows operators to tailor their methods of 
    recordkeeping to their particular operations. We expect that many 
    operators will use a computer-based recordkeeping system. Others may 
    choose to keep certifications on MSHA Form 5000-23. Still others whose 
    records are not computerized may choose to use another paper-based 
    form.
        It should be noted that the information required under the final 
    rule differs from the information called for on MSHA Form 5000-23. In 
    some cases, the final rule requires more information than the form, in 
    some cases, less. The required information will allow us to determine 
    compliance with the training requirements. The information will also 
    enable miners and their representatives to determine that necessary 
    training has been provided for every miner.
        We will be available to assist you in determining whether alternate 
    record formats are suitable for use in complying with the final rule. 
    We will also provide MSHA Form 5000-23 training certificate forms upon 
    request, for those of you who choose to use them in complying with part 
    46. You may also obtain copies of Form 5000-23 from out Internet Home 
    Page at www.msha.gov.
        The requirements of final Sec. 46.9(c)(1) through (5) have been 
    added to the final rule in response to commenters who questioned when 
    records and certificates of training must be made. One commenter 
    observed that the proposed rule did not recognize the difference 
    between a training record and a certificate of training and that 
    requiring training certification and distribution of copies of the 
    certificates for all attendees after a brief safety meeting would 
    result in an unnecessary recordkeeping burden. This commenter stated 
    that the time needed to issue the training certificates in such a 
    situation could easily exceed the amount of time spent providing the 
    training. Another commenter stated that the final rule should require 
    operators to issue training certificates to miners only upon completion 
    of the entire training program, and not each time incremental training 
    is provided. Still another commenter recommended that the final rule 
    should allow the maintenance of periodic training records in a form 
    consistent with how the training records are kept and that 
    certification should only be required for training programs that have 
    been completed.
        The proposed rule did not clearly indicate when operators must make 
    records of miner training and when they must provide training 
    certificates to miners. Some of the comments on the proposed 
    recordkeeping requirements led us to conclude that the proposal was not 
    sufficiently clear on the timing of these requirements and that the 
    final rule must detail the deadlines for both recordkeeping and 
    certification, so there is no question as to when operators must take 
    these actions. The final rule's recordkeeping requirements are also 
    designed to allow us to verify that training has been received by 
    miners by the appropriate deadline. Although these provisions are 
    relatively extensive, we believe that this level of detail is needed to 
    avoid confusion and assist operators in complying with their training 
    responsibilities.
        Final Sec. 46.9(c)(1) clarifies when operators must make a record 
    of new miner training under the final rule. A record of new miner 
    training must be made under Sec. 46.9(b) no later than--
        (1) When the miner begins work at the mine;
        (2) 60 days after the miner begins work at the mine; and
        (3) 90 days after the miner begins work at the mine, if applicable.
        This means that you must make a record of new miner training that 
    includes the information required in paragraphs (b)(1) through (b)(4) 
    no later than these specified intervals. This will allow us to verify 
    that a new miner has received required training before he or she begins 
    work and also that training in all required subjects has been received 
    by the 60-day deadline. Additionally, operators who provide training to 
    new miners in other subjects to make up the 24 hours of required 
    training must document this training no later than 90 days after the 
    miner begins work. For example, if an MSHA inspector wants to verify 
    that a new miner working at a mine has received all required pre-work 
    training, the inspector will inspect the records required for new miner 
    training under paragraph (c)(1)(i). However, the final rule does not 
    require operators to certify these records and provide them to miners 
    until a miner has completed new miner training. Specifically, final 
    Sec. 46.9(d)(1) requires operators to certify new miner training 
    records when the full 24 hours of training has been completed and also 
    to provide miners with copies of their certificates at that time.
        The final rule takes a similar approach in Sec. 46.9(c)(2) for 
    records of newly hired experienced miner training under Sec. 46.6 and 
    requires operators to make records of training no later than--
        (1) When the miner begins work at the mine; and
        (2) 60 days after the miner begins work at the mine.
        Final Sec. 46.9(d) requires newly hired experienced miner records 
    to be certified and provided to miners after the miners have completed 
    all of the newly hired experienced miner training. This is similar to 
    the requirement for certification of new miner training.
        Final Sec. 46.9(c)(3) requires operators to record new task 
    training upon completion of the training, and final Sec. 46.9(c)(4) 
    requires operators to make a record of annual refresher training upon 
    completion of each training session. Consistent with the other types of 
    training already discussed, records of annual refresher training are 
    not required to be certified and provided to miners until the miner has 
    received all eight hours of annual refresher training. For example, if 
    an operator satisfies refresher training requirements for miners by 
    providing a one-hour health and safety talk once a month, the operator 
    must document each one-hour session upon its completion under 
    Sec. 46.9(c)(4). However, operators are not required to ensure that 
    these records are certified and copies provided to miners under 
    Sec. 46.9(d) until after miners have received the full eight hours of 
    training.
        Final Sec. 46.9(c)(5) provides that a record must be made upon 
    completion of site-specific hazard awareness training provided to 
    miners under Sec. 46.11. This clarifies the intent of the proposal, 
    reflected in the preamble, that records of site-specific hazard 
    awareness training would be required only for ``miners,'' not for those 
    persons at the mine site who do not fall within this definition. 
    Because it was obvious that this distinction was not clear to many 
    commenters, we have included this provision in the final rule. 
    Additionally, final Sec. 46.9(i) further clarifies this issue, which 
    the preamble addresses in greater detail below. You must make a record 
    of training under paragraphs (c)(1) through (c)(5) as prescribed in the 
    following table:
    
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                 Recordkeeping Deadlines for Training Provisions
    ------------------------------------------------------------------------
           Type of training         When the record of training must be made
    ------------------------------------------------------------------------
    New miner training...........  No later than when the miner begins to
                                    perform work at the mine; 60 calendar
                                    days after the miner begins work at the
                                    mine, if applicable; and 90 calendar
                                    days after the miner begins work at the
                                    mine, if applicable.
    Newly-hired experienced miner  No later than when the miner begins to
     training.                      perform work at the mine; and 60
                                    calendar days after the miner begins
                                    work at the mine, if applicable.
    New task training............  Upon completion of new task training.
    Annual refresher training....  After each session of annual refresher
                                    training.
    Site-specific hazard           Upon completion by miners of site-
     awareness training.            specific hazard awareness training.
    ------------------------------------------------------------------------
    
        Final Sec. 46.9(d)(1) through (d)(5), as already discussed, require 
    operators to ensure that all records of training under paragraphs 
    (c)(1) through (c)(5) have been certified under paragraph (b)(5) and a 
    copy provided to the miner at the completion of the training. 
    Paragraphs (d)(1) through (d)(5) clarify when the different categories 
    of training are considered completed under the final rule and must be 
    certified. These provisions are consistent with Sec. 115(c) of the Mine 
    Act, which requires that operators give miners copies of their training 
    certificates at the completion of each training program. The final rule 
    specifies that certification and distribution of certificates to miners 
    is required--
        (1) Upon completion of the 24 hours of new miner training;
        (2) Upon completion of newly hired experienced miner training;
        (3) At least once every 12 months for new task training, or upon 
    the miner's request, if applicable;
        (4) Upon completion of 8 hours of annual refresher training; and
        (5) Upon completion of site-specific hazard awareness training 
    provided to miners.
        The 12-month certification requirement for task training has been 
    adopted into the final rule from our policy in this area under part 48. 
    Under that policy, operators may provide miners with copies of their 
    task training certificates at 12-month intervals. This is intended to 
    reduce unnecessary paperwork. However, in the event that a miner wishes 
    a copy of the certificate of the task training that he or she has 
    received before the 12-month period has elapsed, the final rule 
    provides that operators must provide a miner with a copy of the task 
    training certificate upon request. You must certify records of training 
    under paragraphs (d)(1) through (d)(5) and provide a copy to the miner 
    as prescribed in the following table:
    
                   Certification of Records and Copy to Miners
    ------------------------------------------------------------------------
                                       Record must be certified and copy
           Type of training                   provided to miner--
    ------------------------------------------------------------------------
    New miner training...........  Upon completion of the 24 hours of new
                                    miner training.
    Newly hired experienced miner  Upon completion of newly hired
     training.                      experienced miner training.
    New task training............  At least once every 12 months or upon
                                    request by the miner.
    Annual refresher training....  Upon completion of the 8 hours of annual
                                    refresher training.
    Site-specific hazard           Upon completion by miners of site
     awareness training.            specific hazard awareness training.
    ------------------------------------------------------------------------
    
        Final Sec. 46.9(e), like the proposal, adopts the statutory 
    provision that false certification that training was completed is 
    punishable under section 110(a) and (f) of the Mine Act. This aspect of 
    the proposal received no comment and has been adopted without change 
    into the final rule.
        Several commenters were opposed to requiring operators to provide 
    copies of training certificates to miners automatically upon completion 
    of a training program, stating that it would impose an unnecessary, 
    impractical, and burdensome paperwork requirement. These commenters 
    strongly recommended that the final rule require training certificates 
    to be provided to miners only ``upon request,'' similar to the approach 
    taken in the proposal for miners who leave an operator's employ. Other 
    commenters specifically questioned the need for this requirement for 
    records of task training, stating that to require a certificate to be 
    prepared and provided each time task training is given would be 
    administratively difficult and would result in a proliferation of 
    certificates that would not be helpful to employees. These commenters 
    recommended that operators be permitted to maintain records of task 
    training without having to provide copies of the certified records to 
    miners.
        The final rule does not adopt these recommendations. The Mine Act 
    clearly requires operators to provide miners with copies of their 
    training certificates upon completion of the training, and the 
    requirements of the final rule are consistent with this statutory 
    requirement. Additionally, the final rule clarifies that operators must 
    provide miners with copies of their certificates only after all 
    training of a particular type has been completed. This minimizes the 
    recordkeeping and paperwork burden on operators, while fulfilling the 
    statutory mandate.
        Under final Sec. 46.9(f), as under the proposed rule, you must give 
    a miner a copy of his or her training records and certificates when the 
    miner leaves your employ, upon the miner's request. This adopts the 
    provision in Sec. 115(c) of the Mine Act that miners are ``entitled'' 
    to a copy of their certificates when they terminate their employment 
    with an operator. We interpret the statutory language to mean that a 
    miner must be provided a copy if he or she requests it, but that you do 
    not have to provide copies to miners who do not make such a request. 
    Those commenters who addressed this aspect of the proposal supported 
    this interpretation, and this provision is adopted from the proposal 
    unchanged.
        As we indicated in the proposal, we anticipate that miners who are 
    leaving for another job in the mining industry or who intend to return 
    to the mining industry at some point in the future will request copies 
    of their training records. This will enable miners to document their 
    training status under part 46 at other mining operations. However, we 
    also anticipate that some miners will
    
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    terminate their employment because they are retiring or otherwise have 
    no expectation of returning to mining, and for these reasons the final 
    rule does not require that you provide these records to the miner 
    automatically.
        Final Sec. 46.9(g), like the proposal, requires you to make 
    available at the mine site a copy of each miner's training records and 
    certificates for inspection by us and for examination by miners and 
    their representatives. Under this paragraph, you must also have the 
    capability to produce the records and certificates upon request by us, 
    miners, or their representatives, if you do not maintain these records 
    at the mine site.
        Commenters generally supported the flexibility that the proposal 
    would give operators to maintain training records at a location other 
    than the mine site. One commenter contended that it would be highly 
    impractical for many small operators to maintain training records at 
    the mine site, because many mines have no offices or other places to 
    maintain records. Another commenter indicated that some aggregate 
    operations are so small that there are no office facilities, computers, 
    fax machines, or even conventional telephones. This commenter 
    recommended that the final rule allow the retention of training records 
    where the operation's other business records are maintained. If the 
    records were requested by us for examination or by miners or their 
    representative, the commenter suggested that the operator could fax or 
    e-mail them to the person who made the request. However, one commenter 
    expressed concern about allowing training certificates to be maintained 
    away from the mine site, because it could delay MSHA inspectors from 
    identifying untrained miners, who could continue to be exposed to 
    hazards while attempts are made to produce the miners' training 
    records.
        Although the proposed rule would have allowed training certificates 
    to be kept at a location away from the mine site, the proposal did not 
    specify a time within which copies of the certificates must be produced 
    after a request by us or by miners. We indicated in the preamble to the 
    proposal that we expected that operators would be able to produce 
    copies of training certificates within a reasonable time, which in most 
    cases would be a relatively short period of time. We solicited comment 
    on whether commenters supported imposing a deadline for operators to 
    produce training certificates that are maintained away from the mine 
    site. Many commenters who addressed this issue recommended that the 
    final rule establish a deadline of one business day after the request 
    for these certificates to be produced.
        Section 115(c) of the Mine Act provides that miner training records 
    be ``maintained by the operator'' and ``available for inspection at the 
    mine site.'' The clear purpose of section 115 is to ensure that 
    training records can be inspected by us and examined by miners and 
    their representatives to determine whether miners have received 
    required training at a specific operation.
        The use of electronic information accessed by computers is an 
    increasingly common business practice in general industry as well as in 
    the mining industry. This type of technology can provide almost 
    instantaneous communication and transfer of documents, even to remote 
    locations. Electronic recordkeeping is typically more efficient and 
    access to electronic records is often much faster than with traditional 
    paper-based recordkeeping. As a result, we have concluded that if an 
    operator's training records can be quickly accessed at the mine site by 
    e-mail or fax machine, those records are ``available at the mine site'' 
    for purposes of section 115(c) of the Mine Act. Allowing operators to 
    maintain miner training records at a central location will promote the 
    Mine Act's intent of flexibility in minimizing the paperwork burden and 
    will further the objectives of the Paperwork Reduction Act of 1995.
        However, we have determined that allowing a specific deadline, such 
    as one business day, for operators to produce training records and 
    certificates could unduly delay us in verifying that miners have 
    received required training. Under section 104(g)(1) of the Mine Act, 
    miners who have not received training required under section 115 must 
    be immediately withdrawn from the mine. For those reasons, the final 
    rule does not allow operators a specific period of time in which to 
    produce training records and certificates. Instead, our expectation is 
    that operators will produce these documents upon request. However, if 
    an operator does not have the ability at the mine site to quickly 
    access records and certificates maintained elsewhere, the operator must 
    maintain the records and certificates at the mine site so that they can 
    be produced in a short period of time for inspection and examination.
        We do not believe that this requirement places an unreasonable 
    burden on those operations where electronic access to records is not 
    feasible. These are typically small operations with few employees and, 
    as a result, a limited number of training records and certificates. 
    Because of the small number of records, recordkeeping at the mine site 
    is less problematic.
        Final Sec. 46.9(h) requires you to maintain copies of training 
    records and certificates for each currently employed miner during his 
    or her employment, except records and certificates of annual refresher 
    training under Sec. 46.8, which you must maintain for two years. You 
    must also maintain copies of training certificates and training records 
    for at least 60 days after a miner terminates employment.
        Under the proposal, operators would have been required to maintain 
    all of a miner's training records as long as the miner continued to be 
    employed by the operator and for one year after the miner terminated 
    his or her employment with that operator. A number of commenters 
    questioned why the proposal would require such a long retention period 
    for training records of currently employed miners. Commenters believed 
    that this was quite burdensome in comparison to the two-year retention 
    period of part 48 for currently employed miners and recommended that 
    the part 48 retention periods be adopted in the part 46 final rule. 
    Another commenter recommended that the final rule require that training 
    records be kept a minimum of 12 months, regardless of whether the miner 
    is still employed by the operator.
        We acknowledge that the retention period for records of currently 
    employed miners in the proposed rule could result in a significant 
    recordkeeping burden for miners who remain employed with the same 
    operator over a period of many years. However, we use these records to 
    verify that miners have received required training. It makes sense to 
    require retention of records of new miner training, newly hired 
    experienced miner training, and task training as long as the miner 
    remains employed with the operator, not just for two years. This will 
    allow us to determine that miners have received the necessary initial 
    training and training in new or modified tasks, even several years 
    after the training has been given. On the other hand, retention of 
    records of annual refresher training would not be necessary for more 
    than two years, which is the retention period under part 48. Typically, 
    examination of records over the last 24 months will provide us with a 
    sufficient basis to verify that an operator has complied with refresher 
    training requirements. For these reasons, the final rule does not 
    require you to retain refresher training records and certificates 
    longer than two years.
        In response to comments, the final rule requires operators to 
    maintain training records and certificates for at
    
    [[Page 53125]]
    
    least 60 days after the miner terminates his or her employment. This is 
    consistent with existing part 48 requirements. As stated above, the 
    proposal would have required operators to keep these records for one 
    year after miners terminate their employment. We are persuaded by those 
    commenters who advocated a 60-day retention period, which allows us to 
    verify that required training has been given to all miners, including 
    miners who recently terminated their employment, while minimizing the 
    recordkeeping burden placed on operators.
        Finally, one other commenter recommended that training records for 
    miners be retained for at least 36 months after they terminate their 
    employment with the operator, to be consistent with Sec. 46.5, which 
    allows new miner training courses to be credited towards the final 
    rule's new miner training requirements for up to 36 months after the 
    miner takes the courses. This commenter believed that a 36-month 
    retention period would make it easier for miners to take advantage of 
    this provision. Although this commenter makes a reasonable point, we do 
    not believe it is necessary to impose a 36-month record retention 
    period to address this situation. Instead of requiring a longer 
    retention period in the final rule, we encourage miners to retain 
    copies of their training records and certificates from previous 
    employment. A miner who is terminating his or her employment with an 
    operator and who wants evidence of prior training may obtain copies of 
    his or her training records and certificates. The miner will then be 
    able to document his or her prior training at the new mine.
        Paragraph (i) has been added to final Sec. 46.9 in response to 
    comments that reflected commenters' confusion about the recordkeeping 
    requirements for site-specific hazard awareness training. This 
    provision states that you are not required to make a record of site-
    specific hazard awareness training under Sec. 46.11 for persons who are 
    not miners under Sec. 46.2. However, you must be able to provide 
    evidence to us, upon request, that the training was provided, such as 
    by producing the training materials that are used, the written 
    information distributed to persons upon their arrival at the mine, or a 
    visitor log book that reflects that site-specific hazard awareness 
    training has been given. Many operators already maintain log books 
    where they track visitors to the mine and make entries in the book that 
    indicate that visitors have received appropriate site-specific 
    training. This would be an effective and acceptable method of 
    demonstrating compliance with the requirements for site-specific hazard 
    awareness training under the final rule.
    
    Section 46.10  Compensation for Training
    
        This section of the final rule addresses when training under this 
    part must be conducted and how miners must be compensated when they 
    receive training. This section, like the proposal, adopts the 
    provisions of section 115 of the Mine Act that address compensation for 
    miners who receive required training.
        Section 115(b) of the Mine Act provides that health and safety 
    training shall be provided during normal working hours and that miners 
    shall be paid at their normal rate of compensation when they take such 
    training. Section 115(b) also requires that if training is given at a 
    location other than the normal place of work, miners shall be 
    compensated for the additional costs incurred in attending such 
    training.
        Paragraph (a) of final Sec. 46.10 incorporates this statutory 
    requirement and provides that health and safety training must be 
    conducted during normal working hours. As discussed earlier in this 
    preamble, the part 48 definition of ``normal working hours'' has been 
    included in the final rule in Sec. 46.2 and provides that normal 
    working hours means ``. . . a period of time during which a miner is 
    otherwise scheduled to work.'' The definition also indicates that 
    training may be conducted on the sixth or seventh working day provided 
    that such work schedules have been established for a period of time to 
    be accepted as the common practice. As discussed under the preamble for 
    Sec. 46.2, we intend that the schedule must have been in place long 
    enough to provide reasonable assurance that the schedule change was not 
    motivated by the desire to train miners on what had traditionally been 
    a non-work day.
        Final Sec. 46.10(a), like the proposal, also provides that persons 
    attending such training must be paid at a rate of pay that corresponds 
    to the rate of pay they would have received had they been performing 
    their normal work tasks. This provision has been adopted from part 48, 
    received little comment, and has been adopted unchanged from the 
    proposal.
        Final Sec. 46.10(b) requires that miners be compensated for the 
    additional costs, such as mileage, meals, and lodging they may incur in 
    attending training sessions at a location other than the normal place 
    of work. Although we anticipate that much of the training provided 
    under this part will be given at or near miners' normal workplaces, in 
    those cases where miners must travel to receive required training, they 
    are to be fully compensated for their expenses of travel.
        Although commenters generally supported the proposed training 
    compensation requirements, they requested clarification on a few 
    issues. One commenter noted that training provided to miners after a 
    long work day or on what would ordinarily be a day off would not be 
    very effective. This commenter's concern reflects the rationale for the 
    statutory requirement that training be conducted during normal working 
    hours. Training provided to miners when they are tired after working an 
    entire shift typically will be less effective than training provided 
    when they are rested and alert.
        Several commenters questioned whether travel time to training at 
    locations away from the mine must occur during normal working hours. 
    These commenters indicated that they may need to schedule miners to 
    work longer than their normal shifts on days that the miners receive 
    training. For example, if a miner's normal work shift is eight hours, 
    would the final rule prohibit the miner traveling an hour each way to 
    attend an eight-hour training session, for a total of ten hours?
        We do not interpret the statute to mandate such a restrictive 
    result. Under our interpretation, the final rule would not prohibit 
    travel to an off-site training location outside of normal working 
    hours, so long as the actual training occurs during normal working 
    hours. However, a miner is entitled to compensation for travel to off-
    site training. As a practical matter, we expect that little, if any, 
    off-site training will require extensive travel.
        One commenter questioned whether mileage costs must be provided to 
    miners who attend training at a site that is immediately adjacent to 
    the mine site. This commenter stated that because the training location 
    did not qualify as the normal place of work, a strict interpretation of 
    this aspect of the proposal would require the miners to be compensated 
    for mileage costs.
        We agree that the statute and this aspect of the final rule can be 
    interpreted in such a way as to produce unreasonable results. However, 
    our intention is to interpret and enforce the final rule in a 
    reasonable manner. In the case described by the commenter, we expect 
    that the costs incurred by miners in traveling to a training location 
    in the vicinity of the normal place of work would be the same as their 
    ordinary
    
    [[Page 53126]]
    
    costs of getting to work. Because the statute requires that miners be 
    compensated for additional costs of attending off-site training, we 
    would not require reimbursement for travel costs in such a case. 
    However, miners must be reimbursed for mileage costs in the more 
    typical case where miners must drive a number of miles beyond their 
    normal place of work to an off-site training location.
        Finally, a few commenters noted that certain types of training may 
    not be available during normal working hours. For example, miners who 
    wish to take training from the Red Cross may need to take it at night. 
    Although we are sympathetic to these commenters' concerns, the Mine Act 
    specifically prohibits such a practice for training that is provided to 
    satisfy part 46 requirements. We have no discretion to allow training 
    to be provided outside of normal working hours if it is used to satisfy 
    training requirements under this part. As a result, while we do not 
    discourage the participation of miners in relevant safety and health 
    training, such training must be conducted during normal working hours 
    in order for it to be credited toward the minimum requirements of part 
    46.
    
    Section 46.11  Site-Specific Hazard Awareness Training
    
        This section of the final rule generally adopts the proposed 
    provisions for site-specific hazard awareness training, but includes 
    several changes from the proposal in response to comments. Under the 
    final rule, like the proposal, persons who do not fall within the 
    definition of ``miner'' under Sec. 46.2 are required to receive site-
    specific hazard awareness training. The final rule also adopts, with 
    some change, the proposed requirement that employees of independent 
    contractors who are ``miners'' must also receive site-specific hazard 
    awareness training at the mines where they work. Site-specific hazard 
    awareness training must be given under the final rule before persons 
    are exposed to mine hazards.
        Several commenters stated that the title of proposed Sec. 46.11 
    should be changed to more accurately describe the type of training that 
    is required by the section. Commenters observed that the training under 
    this section is intended to make persons aware of site-specific hazards 
    before they enter the mine site and are exposed to these hazards. These 
    commenters believed that the meaning of the term ``hazard training'' 
    was unclear and could be confused with task training. We agree with 
    these commenters, and the title of this section has been change to 
    ``Site-Specific Hazard Awareness Training'' to more precisely identify 
    the type of training that is required by this section of the final 
    rule.
        Commenters generally supported the concept of providing site-
    specific hazard awareness training to persons before they are exposed 
    to mine hazards. Several commenters observed that the type of people 
    who come to the mine site and the degree of their exposure to hazards 
    varies tremendously. These commenters stated that the extent of hazard 
    awareness training required by the final rule should vary greatly as 
    well. Several commenters indicated that the type, duration, and 
    delivery of this training should be commensurate with the hazards to 
    which persons at the mine site are exposed.
        Paragraph (a) of the final rule adopts the requirements of proposed 
    Sec. 46.11(c) and requires you to provide site-specific hazard 
    awareness training before the affected person is exposed to mine 
    hazards. We believe there is no reason to allow any delay in providing 
    hazard awareness training. In fact, allowing persons to be exposed to 
    mine hazards before they receive hazard awareness training would defeat 
    the purpose of the training. We expect that hazard awareness training 
    will not be overly burdensome and can be effectively provided to 
    affected persons before they enter the mine site. We have moved this 
    provision to the first paragraph of this section in the final rule to 
    emphasize that site-specific hazard awareness training must be provided 
    before the affected person is exposed to mine hazards.
        A number of commenters questioned whether operators must provide 
    hazard awareness training to persons who are on mine property but who 
    are not exposed to mine hazards. One commenter used as examples soft 
    drink delivery personnel or other visitors who go no further than the 
    office to perform their work. These commenters recommended that the 
    final rule clarify that hazard awareness training is not required for 
    individuals who come onto mine property but who do not travel or 
    perform work in the portion of the property upon which extraction or 
    production is conducted. Some of these commenters also recommended that 
    the final rule clarify what constitutes a ``mine site'' as that term is 
    used in Sec. 46.11.
        As discussed in the preamble for final Sec. 46.2, the final rule 
    defines ``mine site'' as an area of the mine where mining operations 
    occur. The final rule also defines ``mining operations'' to include 
    activities such as mine development, drilling, blasting; maintenance 
    and repair of mining equipment; and associated haulage of materials 
    within the mine. For example, the mine site would include areas where 
    mining operations take place, such as the pit, quarry, stockpiles, mine 
    haul roads, or areas where customers travel or haul material. These 
    definitions are intended to make clear that hazard awareness training 
    is required for persons who are in the area of the mine property where 
    mining-related activity takes place. Persons who are on mine property 
    but who are never in the area of the property where mining operations 
    occur are not required to receive hazard awareness training. For 
    example, we do not intend that hazard awareness training be required 
    for office or staff personnel whose offices are located some distance 
    from the mine site and whose duties never require their presence at the 
    mine site. However, office or staff personnel who travel occasionally 
    about the mine site must receive hazard awareness training, unless they 
    are accompanied by an experienced miner under final Sec. 46.11(f).
        Final Sec. 46.11(b) requires that you provide site-specific hazard 
    awareness training to any person who is not a miner as defined in 
    Sec. 46.2 but who is present at a mine site. This section also includes 
    examples of such persons. Paragraphs (b)(1) through (b)(7) include 
    examples of persons who are required to receive hazard awareness 
    training, and the provisions of these paragraphs have been adopted with 
    minor changes from the proposal. These persons include office or staff 
    personnel; scientific workers; delivery workers; customers, including 
    commercial over-the-road truck drivers; construction workers or 
    employees of independent contractors who are not miners under 
    Sec. 46.2; maintenance or service workers who do not work at a mine 
    site for frequent or extended periods; and vendors or visitors. This 
    mirrors the list included in final Sec. 46.2(g)(2) of persons who do 
    not fall within the definition of ``miner'' and is discussed in greater 
    detail in the preamble for that section. This list is intended to 
    assist operators in determining the types of persons who must receive 
    hazard awareness training, but is not meant to be all-inclusive.
        The final rule requires hazard awareness training for vendors and 
    visitors who are present at a mine site. Some commenters stated that 
    these individuals are not usually exposed to mine hazards, and 
    therefore they should not have to receive hazard awareness training. 
    However, other commenters stated that this training should be
    
    [[Page 53127]]
    
    provided to visitors and vendors before they are exposed to mine 
    hazards. We agree with commenters who believe that a vendor or visitor 
    who will be in the vicinity of mine hazards, even for a limited period 
    of time, should receive hazard awareness training.
        We have added the provisions of Sec. 46.11(b)(5) to the final rule 
    to make clear that you must provide site-specific hazard awareness 
    training to construction workers and employees of independent 
    contractors who are not miners. This was the intent under the proposal, 
    but language to that effect has been included in the final rule to 
    ensure that there is no uncertainty about the requirements of final 
    Sec. 46.11. As discussed earlier, we stated in the preamble to the 
    proposal that construction workers would be covered by part 46. 
    However, the proposed rule itself made no specific mention of 
    construction workers. We have addressed that omission in the final 
    rule.
        The provisions of final Sec. 46.11(c) have been adopted with some 
    change from proposed Sec. 46.6(d) and take the place of provisions 
    proposed under Sec. 46.11(b). Under final Sec. 46.11(c), you are 
    required to provide miners, such as drillers or blasters, who move from 
    one mine to another mine while remaining employed by the same 
    production-operator or independent contractor with site-specific hazard 
    awareness training for each mine. The provision of the final rule 
    covers miners employed by both the independent contractor and the 
    production-operator. The proposal would have required you to provide 
    hazard training to each person who is an employee of an independent 
    contractor and who is working at the mine as a miner, unless the miner 
    has received newly hired experienced miner training at the mine. 
    However, as explained in the preamble discussion of Sec. 46.6 and in 
    response to comments, we have concluded that miners who move from mine 
    to mine are not ``newly hired'' when the begin work at a new mine if 
    they remain employed by the same employers, whether production-
    operators or independent contractors. As a result, the final rule does 
    not adopt the proposed option of newly hired experienced miner training 
    for these miners.
        Commenters generally supported a requirement for site-specific 
    hazard awareness training for miners if they move from mine site to 
    mine site. Contract drilling and blasting personnel are only two 
    examples of these types of miners. Although these employees must 
    receive comprehensive training because they are ``miners'' under the 
    final rule, they must also receive site-specific hazard awareness 
    training at each new mine before they begin work at the mine. As a 
    practical matter, we expect that many, if not most, independent 
    contractor employees will receive hazard awareness training under final 
    Sec. 46.11(b) because they do not meet the definition of ``miner'' 
    under Sec. 46.2. However, employees of independent contractors who do 
    fall within the definition of ``miner'' also need effective orientation 
    to their new work environments before they begin their job duties. This 
    is consistent with the observations of commenters who stated that some 
    miners move from mine to mine while remaining employed by the same 
    production-operator and that these miners need to receive site-specific 
    hazard awareness training as a minimum before they begin to work at 
    each new mine. We agree with these commenters and Sec. 46.11(c) 
    specifically requires these miners to receive this training, whether 
    employed by production-operators or independent contractors. This 
    requirement recognizes that miners may encounter new or unfamiliar 
    site-specific hazards as they travel from mine to mine.
        Final Sec. 46.11(d) has been adopted from the definition of 
    ``hazard training'' that was included in proposed Sec. 46.2. Commenters 
    recommended that we move the definition of ``hazard training'' from 
    Sec. 46.2 to Sec. 46.11, because Sec. 46.11 specifically addresses 
    hazard awareness training requirements. Commenters believed that this 
    would make it easier for the mining community to understand the 
    requirements of Sec. 46.11. We agree with commenters that consolidation 
    of this language in one place is more straightforward, and we have 
    incorporated the language from the definition in proposed Sec. 46.2 
    into Sec. 46.11 of the final rule. Site-specific hazard awareness 
    training is defined in this paragraph as information or instructions on 
    the hazards a person may be exposed to while on mine property, as well 
    as on applicable emergency procedures. Paragraph (d) further provides 
    that the training must address site-specific health and safety risks, 
    such as unique geologic or environmental conditions, recognition and 
    avoidance of hazards such as electrical and powered-haulage hazards, 
    traffic patterns and control, restricted areas, warning and evacuation 
    signals, evacuation and emergency procedures, or other special safety 
    procedures. The proposal would have provided that the hazards may 
    include site-specific risks and included a similar list.
        The final rule makes it mandatory that hazard awareness training 
    cover site-specific risks. This is in response to commenters who 
    pointed out that the purpose of the training is to ensure that persons 
    who are unfamiliar with the mine and with the hazards of a particular 
    operation have been provided with enough information to avoid exposure 
    to hazards while they are at the mine. We recommend that you review the 
    examples of hazards set forth in the final rule and ensure that the 
    site-specific hazard awareness training addresses, at a minimum, all of 
    the risks that are applicable at your mine.
        Under final Sec. 46.11(e), like proposed Sec. 46.11(d), you may 
    provide site-specific hazard awareness training through the use of 
    written hazard warnings, oral instruction, signs and posted warnings, 
    walkaround training, or other appropriate means that alert affected 
    persons to site-specific hazards at the mine.
        Commenters had varying opinions on how long hazard awareness 
    training should last and what form it should take. Some commenters were 
    concerned that the proposed rule allowed too much flexibility in how 
    the site-specific hazard awareness information would be presented to 
    affected persons. These commenters observed that, in some cases, 
    operators could comply with the requirement for site-specific training 
    exclusively through the use of warning signs, and that such training 
    would be insufficient to protect persons who are unfamiliar with mining 
    operations from the hazards that they may be exposed to at the mine. 
    One commenter recommended that hazard awareness training include some 
    form of personal instruction or interaction, such as walkaround 
    training. Other commenters stated that the final rule should allow 
    operators the flexibility to tailor their hazard awareness training to 
    the specific conditions at their mine.
        The final rule, like the proposal, affords operators the discretion 
    to tailor site-specific hazard awareness training to the unique 
    operations and conditions at their mines. However, the training must in 
    all cases be sufficient to alert affected persons to site-specific 
    hazards. Depending on the circumstances and the type and degree of the 
    person's exposure to mine hazards, you may provide hazard awareness 
    training through informal but informative conversations. In other 
    cases, you may choose to provide some form of walkaround training by 
    guiding the trainee around the mine site, pointing out particular 
    hazards or indicating those areas that the person should avoid, or by 
    some combination of these methods.
    
    [[Page 53128]]
    
        We also intend that hazard awareness training be appropriate for 
    the individual who is receiving it and that the breadth and depth of 
    training vary depending on the skills, background, and job duties of 
    the recipient. For example, it may be appropriate for you to provide 
    hazard awareness training to customer truck drivers by handing out a 
    card to the drivers alerting them to the mine hazards or directing them 
    away from certain areas of the mine site. More extensive hazard 
    awareness training might be needed for an equipment manufacturer's 
    representative who comes onto mine property to service or inspect a 
    piece of mining equipment. Although this individual may not be on mine 
    property for an extended period, the person's exposure to mine hazards 
    may warrant more training. Appropriate hazard awareness training would 
    typically be more comprehensive for contractor employees who fit the 
    definition of ``miner'' because they are engaged in mining operations. 
    These employees receive comprehensive training but also need 
    orientation to the mine site and information on the mining operations 
    and mine hazards.
        The final rule allows you the flexibility to tailor your hazard 
    awareness training to the specific conditions and practices at your 
    mine. However, in most cases, an effective site-specific hazard 
    awareness training program will include a combination of the different 
    types of training listed in this paragraph. For example, you may want 
    to provide oral instructions on the site-specific hazards and give the 
    affected person the opportunity to ask questions about the mine in 
    addition to the use of written handout materials and/or signs and 
    posted warnings. The flexibility provided in the final rule is intended 
    to allow operators to design and implement effective site-specific 
    hazard awareness training programs that are suitable for their mine 
    sites and the persons affected.
        Under final Sec. 46.11(f), like proposed Sec. 46.11(e), you are not 
    required to provide site-specific hazard awareness training to any 
    person who is accompanied at all times by an experienced miner who is 
    familiar with the hazards specific to the mine site. The experienced 
    miner is not a ``competent person'' as defined in Sec. 46.2, but the 
    miner must be sufficiently familiar with the mine's operations and its 
    hazards to ensure that the person the miner accompanies is protected 
    from danger while at the mine site. This provision gives you the option 
    of foregoing site-specific hazard awareness training, most likely for 
    one-time visitors. We expect that, in many situations, it may be more 
    expedient for the person to be accompanied, such as a visitor who is 
    being taken on a mine tour.
        Several commenters supported this provision and recommended that it 
    be adopted in the final rule. Other commenters took issue with this 
    provision, stating that an escort may not prevent a person unfamiliar 
    with the mining environment from being inadvertently exposed to mine 
    hazards. Other commenters stated that they believed that providing a 
    visitor with an escort while the visitor is at the mine site is the 
    most effective way to protect the visitor from mine hazards. We agree 
    that people unfamiliar with mining can be protected if they are 
    accompanied by an experienced miner at all times. However, although not 
    required, there may be circumstances where it is advisable to provide 
    individuals with some oral instructions before they enter the mine 
    site, even though they will be accompanied by an experienced miner.
        You should note that Sec. 46.9(i) of the final rule specifically 
    provides that you are not required to make a record of site-specific 
    hazard awareness training for persons who are not ``miners.'' However, 
    as indicated in Sec. 46.9, you must be able to demonstrate to 
    inspectors that you are in compliance with site-specific hazard 
    awareness training requirements. This issue is addressed in greater 
    detail under the preamble discussion for final Sec. 46.9.
        Finally, several commenters questioned whether government agents at 
    the mine site would be covered by the site-specific hazard awareness 
    training requirements in the final rule. The commenter pointed out that 
    current MSHA policy for part 48 exempts government agents from hazard 
    awareness training requirements. We intend that this issue be addressed 
    in the same manner as it is under part 48. Although an argument could 
    be made in favor of requiring government officials to receive hazard 
    awareness training, we believe that these factors are outweighed by the 
    need for these officials to be unimpeded in the exercise of their 
    duties at the mine site. We expect that government agencies whose 
    personnel visit mine sites will ensure that their employees receive 
    adequate instruction and training so that the employees can carry out 
    their duties in a safe and healthful manner.
    
    Section 46.12  Responsibility for Independent Contractor Training
    
        Section 46.12 of the final rule generally adopts the provisions 
    proposed for the responsibility of training, which address the 
    allocation of responsibility for training between production-operators 
    and independent contractors with workers at the production-operators' 
    mine sites. Under the final rule, independent contractors are 
    responsible for ensuring that their employees who are ``miners'' 
    receive comprehensive miner training. This is based on our 
    determination that the contractor, not the production-operator, is in 
    the best position to train his or her employees in the health and 
    safety aspects of their particular tasks. Similarly, production-
    operators are primarily responsible for ensuring that independent 
    contractor employees who work at the mine site receive required site-
    specific hazard awareness training. This is consistent with the fact 
    that production-operators are in the best position to provide necessary 
    information about hazards at their operations. Final Sec. 46.12 also 
    includes provisions that are intended to ensure that production-
    operators and independent contractors share information with one 
    another about hazards at the mine, so that all employees can work 
    safely.
        Final Sec. 46.12(a)(1) provides that each production-operator is 
    primarily responsible for ensuring that site-specific hazard awareness 
    training is given to employees of independent contractors. Under the 
    proposal, production-operators would have been primarily responsible 
    for ``providing'' site-specific hazard training to employees of 
    independent contractors.
        This aspect of the proposal was the subject of much comment. Many 
    commenters objected to holding production-operators responsible for any 
    aspect of training for independent contractor employees. These 
    commenters maintained that it would be appropriate for the production-
    operator to provide the independent contractor with information about 
    site-specific hazards, but that responsibility for providing the actual 
    training should rest with the independent contractor. One commenter 
    asserted that production-operators do not always have control of people 
    who come on and off site. Another commenter stated that a requirement 
    that production-operators train contractor employees would require the 
    production-operators to accept responsibility for a very large number 
    of individuals who may visit the mine only on occasion or for 
    relatively low-risk activity. This commenter was concerned that 
    production-operators would have to redirect their attention to 
    contractor employees, away from their own employees who may be working 
    at higher risk jobs.
    
    [[Page 53129]]
    
        Other commenters agreed with placing primary responsibility for 
    site-specific hazard awareness training on production-operators. One 
    commenter maintained that the production-operator is the only entity 
    knowledgeable enough to ensure that independent contractor employees 
    are aware of site-specific hazards at the mine site to which they may 
    be exposed. Other commenters insisted that the proposal placed 
    responsibility for training contractor employees where it belongs-on 
    the production-operator for hazard awareness training and on the 
    independent contractor for comprehensive training. Several commenters 
    believed that the proposed requirements would enhance communication 
    between production-operators and independent contractors.
        We continue to believe, as indicated in the preamble to the 
    proposed rule, that it is appropriate to place primary responsibility 
    for site-specific hazard awareness training on production-operators. 
    Production-operators have overall responsibility for health and safety 
    conditions at their mine sites and are in the best position to convey 
    information about site-specific hazards to workers who come onto mine 
    property. However, as we explained in the preamble to the proposed 
    rule, final Sec. 46.12(a)(1) does not require production-operators to 
    personally provide site-specific hazard awareness training to the 
    employees of an independent contractor. For these reasons, the language 
    of the final rule varies slightly from the language in the proposal. 
    The final rule provides that production-operators are primarily 
    responsible for ``ensuring'' that independent contractor employees 
    receive required site-specific hazard awareness training. This is 
    intended to clarify that production-operators do not need to provide 
    the training themselves but must ensure that the training has been 
    given. For example, one commenter recommended that the production-
    operator and the independent contractor coordinate whether the 
    production-operator will provide site-specific hazard awareness 
    training information to independent contractor management, who would 
    then train the contractor employees, or whether the production-operator 
    will provide the information directly to the contractor employees. This 
    is an acceptable approach under the final rule. Consistent with final 
    Sec. 46.4, production-operators may provide independent contractors 
    with site-specific hazard awareness information or training materials 
    and arrange for the contractors to provide the training to the 
    contractors' employees. However, production-operators retain the 
    primary responsibility of ensuring that everyone who comes onto mine 
    sites has received the necessary site-specific hazard awareness 
    training.
        A few commenters appeared to misunderstand the requirements of 
    proposed Sec. 46.12(a). For example, one commenter observed that 
    production-operators often hire contractors because production-
    operators often do not have the equipment or knowledge to do the job. 
    In that instance, the commenter maintained, it would be wrong to expect 
    the production-operator to provide comprehensive training to contractor 
    employees when the production-operator may not be familiar with their 
    work and the associated hazards. In response to this comment, we would 
    like to clarify that the final rule, like the proposal, places primary 
    responsibility on production-operators to ensure training for 
    contractor employees only with regard to site-specific hazard awareness 
    training. Final Sec. 46.12(b)(1), discussed below, explicitly provides 
    that independent contractors are primarily responsible for providing 
    their miner employees with any other training required under this part.
        Final Sec. 46.12(a)(2) adopts the proposed requirement that 
    production-operators inform independent contractors of site-specific 
    hazards associated with the mine and the obligation of the contractor 
    to comply with our regulations, including part 46. This aspect of the 
    proposal received little comment, and we have adopted it unchanged into 
    the final rule.
        Final Sec. 46.12(b)(1) provides that independent contractors who 
    employ ``miners'' are primarily responsible for providing comprehensive 
    training to their employees (i.e., training under Secs. 46.5 through 
    46.8). Virtually all commenters agreed with this aspect of the 
    proposal. We would point out that this provision does not preclude 
    independent contractors from arranging for the production-operator to 
    provide comprehensive training to the contractors' employees. However, 
    the primary responsibility for comprehensive training for contractor 
    employees continues to rest on the independent contractor.
        A few commenters suggested that the final rule require production-
    operators to verify that independent contractor employees have received 
    all training required under part 46. As we indicated in the preamble to 
    the proposal, the requirements of this section are consistent with our 
    current policy on independent contractors, which provides that 
    production-operators have overall compliance responsibility at their 
    mines, which includes ensuring compliance by independent contractors 
    with the Mine Act and regulations. Independent contractors are 
    responsible for compliance with the Act and regulations with respect to 
    their activities at a particular mine. We also cite independent 
    contractors for violations committed by them and their employees. 
    However, neither this policy nor the provisions of this section change 
    the production-operators' basic responsibilities for compliance with 
    the Act. Production-operators are subject to all provisions of the Act 
    and to all standards and regulations applicable to their mining 
    operations. One way for production-operators to address this 
    responsibility is to confirm when contracting with independent 
    contractors that the contractors' employees will receive health and 
    safety training and to include this as a provision in the contract. It 
    may also be prudent for them to request and maintain evidence of 
    independent contractors' compliance with training requirements.
        Under final Sec. 46.12(b)(2), as under the proposal, an independent 
    contractor must inform the production-operator of any hazards of which 
    the contractor is aware that may be created by the performance of the 
    contractor's work at the mine. We did not receive any comments 
    specifically addressing the provisions of this paragraph, and we have 
    adopted it without change into the final rule.
    
    XIV. References
    
        Conference Rep. No. 95-461, 95th Cong., 1st Sess., (1977).
        Federal Metal and Nonmetallic Mine Safety Act, September 16, 
    1966.
        Federal Coal Mine Health and Safety Act, December 30, 1969.
        Federal Mine Safety and Health Act, November 9, 1977.
        H.R. Rep. No. 105-825 for H.R. 4328, 105th Cong., 2d Sess. 
    (1998).
        Joint Industry and Labor draft proposed rule for Training and 
    Retraining of Miners Engaged in Shell Dredging or Employed at Sand, 
    Gravel, Surface Stone, Surface Clay, Colloidal Phosphate, or Surface 
    Limestone Mines, February 1, 1999.
        MSHA, Health and Safety Training and Retraining of Miners, Final 
    Rule, October 13, 1978 [43 FR 47454-47468].
        MSHA, Notice of Public Meetings, November 3, 1998 [63 FR 59258].
        MSHA, Notice of Public Hearings, April 14, 1999 [63 FR 18528].
        MSHA, Experienced Miner and Supervisor Training, Final Rule, 
    October 6, 1998 [63 FR 53750].
        MSHA, Training and Retraining of Miners Engaged in Shell 
    Dredging or Employed at
    
    [[Page 53130]]
    
    Sand, Gravel, Surface Stone, Surface Clay, Colloidal Phosphate, or 
    Surface Limestone Mines, Proposed Rule, April 14, 1999, [64 FR 
    18498-18528].
        Omnibus Appropriations Act for 1999, P.L. 105-277, October 21, 
    1998.
        S. Rep. No. 105-300 for S. 2440, 105th Cong., 2d Sess., (1998).
        Transportation Equity Act ``TEA-21'' (P.L. 105-178), June 9, 
    1998.
        U.S. Geological Survey, U.S. Department of the Interior, Mineral 
    Industry Surveys, Crushed Stone and Sand and Gravel in the Third 
    Quarter of 1998, December 1998, pp. 1-5.
        U.S. Geological Survey, U.S. Department of the Interior, Mineral 
    Industry Surveys, Crushed Stone and Sand and Gravel in the First 
    Quarter of 1999, June 1999, pp. 1-6.
        U.S. Geological Survey, Mineral Commodity Summaries, Stone 
    (Crushed), Valentin V. Tepordei, January 1996, pp. 1-2.
        U.S. Geological Survey, Mineral Commodity Summaries, Stone 
    (Crushed), Valentin V. Tepordei, February 1997, pp. 1-2.
        U.S. Geological Survey, Mineral Commodity Summaries, Stone 
    (Crushed), Valentin V. Tepordei, January 1998, pp. 1-2.
        U.S. Geological Survey, Mineral Commodity Summaries, Stone 
    (Crushed), Valentin V. Tepordei, January 1999, pp. 1-2.
        U.S. Geological Survey, Mineral Commodity Summaries, Sand and 
    Gravel (Construction), Wallace P. Bolen, January 1996, pp. 1-2.
        U.S. Geological Survey, Mineral Commodity Summaries, Sand and 
    Gravel (Construction), Wallace P. Bolen, February 1997, pp. 1-2.
        U.S. Geological Survey, Mineral Commodity Summaries, Sand and 
    Gravel (Construction), Wallace P. Bolen, January 1998, pp. 1-2.
        U.S. Geological Survey, Mineral Commodity Summaries, Sand and 
    Gravel (Construction), Wallace P. Bolen, January 1999, pp. 1-2.
    
    List of Subjects
    
    30 CFR Part 46
    
        Mine safety and health, Reporting and recordkeeping requirements, 
    Surface mining, Training programs.
    
    30 CFR Part 48
    
        Mine safety and health, Reporting and recordkeeping requirements, 
    Training programs.
    
        Dated: September 23, 1999.
    J. Davitt McAteer,
    Assistant Secretary for Mine Safety and Health.
    
        Accordingly, under the authority of 30 U.S.C. 811 and for the 
    reasons set out in the preamble, MSHA is amending chapter I, title 30 
    of the Code of Federal Regulations, as follows:
    
    PART 48--[AMENDED]
    
        1. The authority citation for part 48 continues to read as follows:
    
        Authority: 30 U.S.C. 811, 825.
    
        2. Section 48.21 is amended by adding a new sentence to read as 
    follows:
    
    
    Sec. 48.21  Scope.
    
        * * * This part does not apply to training and retraining of miners 
    at shell dredging, sand, gravel, surface stone, surface clay, colloidal 
    phosphate, and surface limestone mines, which are covered under 30 CFR 
    Part 46.
        3. A new part 46 is added to subchapter H of Title 30 of the Code 
    of Federal Regulations to read as follows:
    
    PART 46--TRAINING AND RETRAINING OF MINERS ENGAGED IN SHELL 
    DREDGING OR EMPLOYED AT SAND, GRAVEL, SURFACE STONE, SURFACE CLAY, 
    COLLOIDAL PHOSPHATE, OR SURFACE LIMESTONE MINES.
    
    Sec.
    46.1  Scope.
    46.2  Definitions.
    46.3  Training plans.
    46.4  Training plan implementation.
    46.5  New miner training.
    46.6  Newly hired experienced miner training.
    46.7  New task training.
    46.8  Annual refresher training.
    46.9  Records of training.
    46.10  Compensation for training.
    46.11  Site-specific hazard awareness training.
    46.12  Responsibility for independent contractor training.
    
        Authority: 30 U.S.C. 811, 825.
    
    Sec. 46.1  Scope.
    
        The provisions of this part set forth the mandatory requirements 
    for training and retraining miners and other persons at shell dredging, 
    sand, gravel, surface stone, surface clay, colloidal phosphate, and 
    surface limestone mines.
    
    
    Sec. 46.2  Definitions.
    
    The following definitions apply in this part:
    
        (a) Act means the Federal Mine Safety and Health Act of 1977.
        (b) Competent person means a person designated by the production-
    operator or independent contractor who has the ability, training, 
    knowledge, or experience to provide training to miners in his or her 
    area of expertise. The competent person must be able both to 
    effectively communicate the training subject to miners and to evaluate 
    whether the training given to miners is effective.
        (c) Equivalent experience means work experience where the person 
    performed duties similar to duties performed in mining operations at 
    surface mines. Such experience may include, but is not limited to, work 
    as a heavy equipment operator, truck driver, skilled craftsman, or 
    plant operator.
        (d)(1) Experienced miner means:
        (i) A person who is employed as a miner on April 14, 1999;
        (ii) A person who has at least 12 months of cumulative surface 
    mining or equivalent experience on or before October 2, 2000;
        (iii) A person who began employment as a miner after April 14, 
    1999, but before October 2, 2000 and who has received new miner 
    training under Sec. 48.25 of this title or under proposed requirements 
    published April 14, 1999, which are available from the Office of 
    Standards, Regulations and Variances, MSHA, 4015 Wilson Boulevard, 
    Arlington, Virginia 22203; or
        (iv) A person employed as a miner on or after October 2, 2000 who 
    has completed 24 hours of new miner training under Sec. 46.5 of this 
    part or under Sec. 48.25 of this title and who has at least 12 
    cumulative months of surface mining or equivalent experience.
        (2) Once a miner is an experienced miner under this section, the 
    miner will retain that status permanently.
        (e) Independent contractor means any person, partnership, 
    corporation, subsidiary of a corporation, firm, association, or other 
    organization that contracts to perform services at a mine under this 
    part.
        (f) Mine site means an area of the mine where mining operations 
    occur.
        (g)(1) Miner means:
        (i) Any person, including any operator or supervisor, who works at 
    a mine and who is engaged in mining operations. This definition 
    includes independent contractors and employees of independent 
    contractors who are engaged in mining operations; and
        (ii) Any construction worker who is exposed to hazards of mining 
    operations.
        (2) The definition of ``miner'' does not include scientific 
    workers; delivery workers; customers (including commercial over-the-
    road truck drivers); vendors; or visitors. This definition also does 
    not include maintenance or service workers who do not work at a mine 
    site for frequent or extended periods.
        (h) Mining operations means mine development, drilling, blasting, 
    extraction, milling, crushing, screening, or sizing of minerals at a 
    mine; maintenance and repair of mining equipment; and associated 
    haulage of materials within the mine from these activities.
        (i) New miner means a person who is beginning employment as a miner 
    with a production-operator or independent contractor and who is not an 
    experienced miner.
    
    [[Page 53131]]
    
        (j) Newly hired experienced miner means an experienced miner who is 
    beginning employment with a production-operator or independent 
    contractor. Experienced miners who move from one mine to another, such 
    as drillers and blasters, but who remain employed by the same 
    production-operator or independent contractor are not considered newly 
    hired experienced miners.
        (k) Normal working hours means a period of time during which a 
    miner is otherwise scheduled to work, including the sixth or seventh 
    working day if such a work schedule has been established for a 
    sufficient period of time to be accepted as the common practice of the 
    production-operator or independent contractor, as applicable.
        (l) Operator means any production-operator, or any independent 
    contractor whose employees perform services at a mine.
        (m) Production-operator means any owner, lessee, or other person 
    who operates, controls, or supervises a mine under this part.
        (n) Task means a work assignment or component of a job that 
    requires specific job knowledge or experience.
        (o) We or us means the Mine Safety and Health Administration 
    (MSHA).
        (p) You means production-operators and independent contractors.
    
    
    Sec. 46.3  Training plans.
    
        (a) You must develop and implement a written plan, approved by us 
    under either paragraph (b) or (c) of this section, that contains 
    effective programs for training new miners and newly hired experienced 
    miners, training miners for new tasks, annual refresher training, and 
    site-specific hazard awareness training.
        (b) A training plan is considered approved by us if it contains, at 
    a minimum, the following information:
        (1) The name of the production-operator or independent contractor, 
    mine name(s), and MSHA mine identification number(s) or independent 
    contractor identification number(s);
        (2) The name and position of the person designated by you who is 
    responsible for the health and safety training at the mine. This person 
    may be the production-operator or independent contractor;
        (3) A general description of the teaching methods and the course 
    materials that are to be used in the training program, including the 
    subject areas to be covered and the approximate time or range of time 
    to be spent on each subject area.
        (4) A list of the persons and/or organizations who will provide the 
    training, and the subject areas in which each person and/or 
    organization is competent to instruct; and
        (5) The evaluation procedures used to determine the effectiveness 
    of training.
        (c) A plan that does not include the minimum information specified 
    in paragraphs (b)(1) through (b)(5) of this section must be submitted 
    to and approved by the Regional Manager, Educational Field Services 
    Division, or designee, for the region in which the mine is located. You 
    also may voluntarily submit a plan for Regional Manager approval. You 
    must notify miners or their representatives when you submit a plan for 
    Regional Manager approval. Within two weeks of receipt or posting of 
    the plan, miners and their representatives may also request review and 
    approval of the plan by the Regional Manager and must notify the 
    production-operator or independent contractor of such request.
        (d) You must provide the miners' representative, if any, with a 
    copy of the plan at least 2 weeks before the plan is implemented or, if 
    you request MSHA approval of your plan, at least two weeks before you 
    submit the plan to the Regional Manager for approval. At mines where no 
    miners' representative has been designated, you must post a copy of the 
    plan at the mine or provide a copy to each miner at least 2 weeks 
    before you implement the plan or submit it to the Regional Manager for 
    approval.
        (e) Within 2 weeks following the receipt or posting of the training 
    plan under paragraph (d) of this section, miners or their 
    representatives may submit written comments on the plan to you, or to 
    the Regional Manager, as appropriate.
        (f) The Regional Manager must notify you and miners or their 
    representatives in writing of the approval, or status of the approval, 
    of the training plan within 30 calendar days of the date we received 
    the training plan for approval, or within 30 calendar days of the date 
    we received the request by a miner or miners' representative that we 
    approve your plan.
        (g) You must provide the miners' representative, if any, with a 
    copy of the approved plan within one week after approval. At mines 
    where no miners' representative has been designated, you must post a 
    copy of the plan at the mine or provide a copy to each miner within one 
    week after approval.
        (h) If you, miners, or miners' representatives wish to appeal a 
    decision of the Regional Manager, you must send the appeal, in writing, 
    to the Director for Educational Policy and Development, MSHA, 4015 
    Wilson Boulevard, Arlington, Virginia 22203, within 30 calendar days 
    after notification of the Regional Manager's decision. The Director 
    will issue a final decision of the Agency within 30 calendar days after 
    receipt of the appeal.
        (i) You must make available at the mine a copy of the current 
    training plan for inspection by us and for examination by miners and 
    their representatives. If the training plan is not maintained at the 
    mine, you must have the capability to provide the plan within one 
    business day upon request by us, miners, or their representatives.
        (j) You must comply with the procedures for plan approval under 
    this section whenever the plan undergoes revisions.
        (k) The addresses for the EFS Regional Managers are as follows. 
    Current information on the EFS organization is available on MSHA's 
    Internet Home Page at http://www.msha.gov.
    
    Eastern Regional Manager
    
    Educational Field Services, National Mine Health and Safety Academy, 
    1301 Airport Road, Beaver, WV 25813-9426, Telephone: (304) 256-3223, 
    FAX: (304) 256-3319, E-mail: [email protected]
    
    Western Regional Manager
    
    Educational Field Services, P.O. Box 25367, Denver, CO 80225-0367, 
    Telephone: (303) 231-5434, FAX: (304) 231-5474, E-mail: 
    [email protected]
    
    
    Sec. 46.4  Training plan implementation.
    
        (a) You must ensure that each program, course of instruction, or 
    training session is:
        (1) Conducted in accordance with the written training plan;
        (2) Presented by a competent person; and
        (3) Presented in language understood by the miners who are 
    receiving the training.
        (b) You may conduct your own training programs or may arrange for 
    training to be conducted by: state or federal agencies; associations of 
    production-operators or independent contractors; miners' 
    representatives; consultants; manufacturers' representatives; private 
    associations; educational institutions; or other training providers.
        (c) You may substitute, as applicable, health and safety training 
    required by the Occupational Safety and Health Administration (OSHA), 
    or other federal or state agencies to meet requirements under this 
    part. This training must be relevant to training subjects required in 
    this part. You must document the
    
    [[Page 53132]]
    
    training in accordance with Sec. 46.9 of this part.
        (d) Training methods may consist of classroom instruction, 
    instruction at the mine, interactive computer-based instruction or 
    other innovative training methods, alternative training technologies, 
    or any combination of training methods.
        (e) Employee health and safety meetings, including informal health 
    and safety talks and instruction, may be credited under this part 
    toward either new miner training, newly hired experienced miner 
    training, or annual refresher training requirements, as appropriate, 
    provided that you document each training session in accordance with 
    Sec. 46.9 of this part. In recording the duration of training, you must 
    include only the portion of the session actually spent in training.
    
    
    Sec. 46.5  New miner training.
    
        (a) Except as provided in paragraphs (f) and (g) of this section, 
    you must provide each new miner with no less than 24 hours of training 
    as prescribed by paragraphs (b), (c), and (d). Miners who have not yet 
    received the full 24 hours of new miner training must work where an 
    experienced miner can observe that the new miner is performing his or 
    her work in a safe and healthful manner.
    
    ----------------------------------------------------------------------------------------------------------------
     
    ----------------------------------------------------------------------------------------------------------------
    (b) Before a new miner begins work at the mine--         You must provide the miner with no less than 4 hours of
                                                              training in the following subjects, which must also
                                                              address site-specific hazards:
                                                                (1) An introduction to the work environment,
                                                                 including a visit and tour of the mine, or portions
                                                                 of the mine that are representative of the entire
                                                                 mine (walkaround training). The method of mining or
                                                                 operation utilized must be explained and observed;
                                                                (2) Instruction on the recognition and avoidance of
                                                                 electrical hazards and other hazards present at the
                                                                 mine, such as traffic patterns and control, mobile
                                                                 equipment (e.g., haul trucks and front-end
                                                                 loaders), and loose or unstable ground conditions;
                                                                (3) A review of the emergency medical procedures,
                                                                 escape and emergency evacuation plans, in effect at
                                                                 the mine, and instruction on the firewarning
                                                                 signals and firefighting procedures;
                                                                (4) Instruction on the health and safety aspects of
                                                                 the tasks to be assigned, including the safe work
                                                                 procedures of such tasks, and the mandatory health
                                                                 and safety standards pertinent to such tasks;
                                                                (5) Instruction on the statutory rights of miners
                                                                 and their representatives under the Act;
                                                                (6) A review and description of the line of
                                                                 authority of supervisors and miners'
                                                                 representatives and the responsibilities of such
                                                                 supervisors and miners' representatives; and
                                                                (7) An introduction to your rules and procedures for
                                                                 reporting hazards.
    ----------------------------------------------------------------------------------------------------------------
    (c) No later than 60 calendar days after a new miner     You must provide the miner with training in the
     begins work at the mine--                                following subject:
                                                                (1) Instruction and demonstration on the use, care,
                                                                 and maintenance of self-rescue and respiratory
                                                                 devices, if used at the mine; and
                                                                (2) A review of first aid methods.
    ----------------------------------------------------------------------------------------------------------------
    (d) No later than 90 calendar days after a new miner     You must provide the miner with the balance, if any, of
     begins work at the mine--                                the 24 hours of training on any other subjects that
                                                              promote occupational health and safety for miners at
                                                              the mine.
    ----------------------------------------------------------------------------------------------------------------
    
        (e) Practice under the close observation of a competent person may 
    be used to fulfill the requirement for training on the health and 
    safety aspects of an assigned task in paragraph (b)(4) of this section, 
    if hazard recognition training specific to the assigned task is given 
    before the miner performs the task.
        (f) A new miner who has less than 12 cumulative months of surface 
    mining or equivalent experience and has completed new miner training 
    under this section or under Sec. 48.25 of this title within 36 months 
    before beginning work at the mine does not have to repeat new miner 
    training. However, you must provide the miner with training specified 
    in paragraph (b) of this section before the miner begins work at the 
    mine.
        (g) A new miner training course completed under Sec. 48.5 or 
    Sec. 48.25 of this title may be used to satisfy the requirements of 
    paragraphs (a), (b), and (c) of this section, if the course was 
    completed by the miner within 36 months before beginning work at the 
    mine; and the course is relevant to the subjects specified in 
    paragraphs (b) and (c) of this section.
    
    
    Sec. 46.6  Newly hired experienced miner training.
    
        (a) Except as provided in paragraph (f) of this section, you must 
    provide each newly hired experienced miner with training as prescribed 
    by paragraphs (b) and (c).
    
    ----------------------------------------------------------------------------------------------------------------
     
    ----------------------------------------------------------------------------------------------------------------
    (b) Before a newly hired experienced miner begins work   You must provide the miner with training in the
     at the mine--                                            following subjects, which must also address site-
                                                              specific hazards:
                                                                (1) An introduction to the work environment,
                                                                 including a visit and tour of the mine, or portions
                                                                 of the mine that are representative of the entire
                                                                 mine (walkaround training). The method of mining or
                                                                 operation utilized must be explained and observed;
                                                                (2) Instruction on the recognition and avoidance of
                                                                 electrical hazards and other hazards present at the
                                                                 mine, such as traffic patterns and control, mobile
                                                                 equipment (e.g., haul trucks and front-end
                                                                 loaders), and loose or unstable ground conditions;
                                                                (3) A review of the emergency medical procedures,
                                                                 escape and emergency evacuation plans, in effect at
                                                                 the mine, and instruction on the firewarning
                                                                 signals and firefighting procedures;
                                                                (4) Instruction on the health and safety aspects of
                                                                 the tasks to be assigned, including the safe work
                                                                 procedures of such tasks, and the mandatory health
                                                                 and safety standards pertinent to such tasks;
                                                                (5) Instruction on the statutory rights of miners
                                                                 and their representatives under the Act;
                                                                (6) A review and description of the line of
                                                                 authority of supervisors and miners'
                                                                 representatives and the responsibilities of such
                                                                 supervisors and miners' representatives; and
                                                                (7) An introduction to your rules and procedures for
                                                                 reporting hazards.
    ----------------------------------------------------------------------------------------------------------------
    
    [[Page 53133]]
    
     
    (c) No later than 60 calendar days after a newly hired   You must provide the miner with an instruction and
     experienced miner begins work at the mine--              demonstration on the use, care, and maintenance of
                                                              self-rescue and respiratory devices, if used at the
                                                              mine.
    ----------------------------------------------------------------------------------------------------------------
    
        (d) Practice under the close observation of a competent person may 
    be used to fulfill the requirement for training on the health and 
    safety aspects of an assigned task in paragraph (b)(4) of this section, 
    if hazard recognition training specific to the assigned task is given 
    before the miner performs the task.
        (e) In addition to subjects specified in paragraphs (b) and (c) of 
    this section, you may provide training on any other subjects that 
    promote occupational health and safety for miners.
        (f) You are not required to provide a newly hired experienced miner 
    who returns to the same mine, following an absence of 12 months or 
    less, with the training specified in paragraphs (b) and (c) of this 
    section. Instead you must provide such miner with training on any 
    changes at the mine that occurred during the miner's absence that could 
    adversely affect the miner's health or safety. This training must be 
    given before the miner begins work at the mine. If the miner missed any 
    part of annual refresher training under Sec. 46.8 of this part during 
    the absence, you must provide the miner with the missed training no 
    later than 90 calendar days after the miner begins work at the mine.
    
    
    Sec. 46.7  New task training.
    
        (a) You must provide any miner who is reassigned to a new task in 
    which he or she has no previous work experience with training in the 
    health and safety aspects and safe work procedures specific to that new 
    task. This training must be provided before the miner performs the new 
    task.
        (b) If a change occurs in a miner's assigned task that affects the 
    health and safety risks encountered by the miner, you must provide the 
    miner with training under paragraph (a) of this section that addresses 
    the change.
        (c) You are not required to provide new task training under 
    paragraphs (a) and (b) of this section to miners who have received 
    training in a similar task or who have previous work experience in the 
    task, and who can demonstrate the necessary skills to perform the task 
    in a safe and healthful manner. To determine whether task training 
    under this section is required, you must observe that the miner can 
    perform the task in a safe and healthful manner.
        (d) Practice under the close observation of a competent person may 
    be used to fulfill the requirement for task training under this 
    section, if hazard recognition training specific to the assigned task 
    is given before the miner performs the task.
        (e) Training provided under this section may be credited toward new 
    miner training, as appropriate.
    
    
    Sec. 46.8  Annual refresher training.
    
        (a) You must provide each miner with no less than 8 hours of annual 
    refresher training--
        (1) No later than 12 months after the miner begins work at the 
    mine, or no later than March 30, 2001, whichever is later; and
        (2) Thereafter, no later than 12 months after the previous annual 
    refresher training was completed.
        (b) The refresher training must include instruction on changes at 
    the mine that could adversely affect the miner's health or safety.
        (c) Refresher training must also address other health and safety 
    subjects that are relevant to mining operations at the mine. 
    Recommended subjects include, but are not limited to: applicable health 
    and safety requirements, including mandatory health and safety 
    standards; transportation controls and communication systems; escape 
    and emergency evacuation plans, firewarning and firefighting; ground 
    conditions and control; traffic patterns and control; working in areas 
    of highwalls; water hazards, pits, and spoil banks; illumination and 
    night work; first aid; electrical hazards; prevention of accidents; 
    health; explosives; and respiratory devices. Training is also 
    recommended on the hazards associated with the equipment that has 
    accounted for the most fatalities and serious injuries at the mines 
    covered by this rule, including: mobile equipment (haulage and service 
    trucks, front-end loaders and tractors); conveyor systems; cranes; 
    crushers; excavators; and dredges. Other recommended subjects include: 
    maintenance and repair (use of hand tools and welding equipment); 
    material handling; fall prevention and protection; and working around 
    moving objects (machine guarding).
    
    
    Sec. 46.9  Records of training.
    
        (a) You must record and certify on MSHA Form 5000-23, or on a form 
    that contains the information listed in paragraph (b) of this section, 
    that each miner has received training required under this part.
        (b) The form must include:
        (1) The printed full name of the person trained;
        (2) The type of training, the duration of the training, the date 
    the training was received, the name of the competent person who 
    provided the training:
        (3) The name of the mine or independent contractor, MSHA mine 
    identification number or independent contractor identification number, 
    and location of training (if an institution, the name and address of 
    the institution).
        (4) The statement, ``False certification is punishable under 
    Sec. 110(a) and (f) of the Federal Mine Safety and Health Act,'' 
    printed in bold letters and in a conspicuous manner; and
        (5) A statement signed by the person designated in the MSHA-
    approved training plan for the mine as responsible for health and 
    safety training, that states ``I certify that the above training has 
    been completed.''
        (c) You must make a record of training under paragraphs (b)(1) 
    through (b)(4) of this section--
        (1) For new miner training under Sec. 46.5, no later than--
        (i) when the miner begins work at the mine as required under 
    Sec. 46.5(b);
        (ii) 60 calendar days after the miner begins work at the mine as 
    required under Sec. 46.5(c); and
        (iii) 90 calendar days after the miner begins work at the mine as 
    required under Sec. 46.5(d), if applicable.
        (2) For newly hired experienced miner training under Sec. 46.6, no 
    later than--
        (i) when the miner begins work at the mine; and
        (ii) 60 calendar days after the miner begins work at the mine.
        (3) Upon completion of new task training under Sec. 46.7;
        (4) After each session of annual refresher training under 
    Sec. 46.8; and
        (5) Upon completion by miners of site-specific hazard awareness 
    training under Sec. 46.11.
        (d) You must ensure that all records of training under paragraphs 
    (c)(1) through (c)(5) of this section are certified under paragraph 
    (b)(5) of this section and a copy provided to the miner--
        (1) Upon completion of the 24 hours of new miner training;
        (2) Upon completion of newly hired experienced miner training;
    
    [[Page 53134]]
    
        (3) At least once every 12 months for new task training, or upon 
    request by the miner, if applicable;
        (4) Upon completion of the 8 hours of annual refresher training; 
    and
        (5) Upon completion by miners of site-specific hazard awareness 
    training.
        (e) False certification that training was completed is punishable 
    under Sec. 110(a) and (f) of the Act.
        (f) When a miner leaves your employ, you must provide each miner 
    with a copy of his or her training records and certificates upon 
    request.
        (g) You must make available at the mine a copy of each miner's 
    training records and certificates for inspection by us and for 
    examination by miners and their representatives. If training 
    certificates are not maintained at the mine, you must be able to 
    provide the certificates upon request by us, miners, or their 
    representatives.
        (h) You must maintain copies of training certificates and training 
    records for each currently employed miner during his or her employment, 
    except records and certificates of annual refresher training under 
    Sec. 46.8, which you must maintain for only two years. You must 
    maintain copies of training certificates and training records for at 
    least 60 calendar days after a miner terminates employment.
        (i) You are not required to make records under this section of 
    site-specific hazard awareness training you provide under Sec. 46.11 of 
    this part to persons who are not miners under Sec. 46.2. However, you 
    must be able to provide evidence to us, upon request, that the training 
    was provided, such as the training materials that are used; copies of 
    written information distributed to persons upon their arrival at the 
    mine; or visitor log books that indicate that training has been 
    provided.
    
    
    Sec. 46.10  Compensation for training.
    
        (a) Training must be conducted during normal working hours. Persons 
    required to receive training must be paid at a rate of pay that 
    corresponds to the rate of pay they would have received had they been 
    performing their normal work tasks.
        (b) If training is given at a location other than the normal place 
    of work, persons required to receive such training must be compensated 
    for the additional costs, including mileage, meals, and lodging, they 
    may incur in attending such training sessions.
    
    
    Sec. 46.11  Site-specific hazard awareness training.
    
        (a) You must provide site-specific hazard awareness training before 
    any person specified under this section is exposed to mine hazards.
        (b) You must provide site-specific hazard awareness training, as 
    appropriate, to any person who is not a miner as defined by Sec. 46.2 
    of this part but is present at a mine site, including:
        (1) Office or staff personnel;
        (2) Scientific workers;
        (3) Delivery workers;
        (4) Customers, including commercial over-the-road truck drivers;
        (5) Construction workers or employees of independent contractors 
    who are not miners under Sec. 46.2 of this part;
        (6) Maintenance or service workers who do not work at the mine site 
    for frequent or extended periods; and
        (7) Vendors or visitors.
        (c) You must provide miners, such as drillers or blasters, who move 
    from one mine to another mine while remaining employed by the same 
    production-operator or independent contractor with site-specific hazard 
    awareness training for each mine.
        (d) Site-specific hazard awareness training is information or 
    instructions on the hazards a person could be exposed to while at the 
    mine, as well as applicable emergency procedures. The training must 
    address site-specific health and safety risks, such as unique geologic 
    or environmental conditions, recognition and avoidance of hazards such 
    as electrical and powered-haulage hazards, traffic patterns and 
    control, and restricted areas; and warning and evacuation signals, 
    evacuation and emergency procedures, or other special safety 
    procedures.
        (e) You may provide site-specific hazard awareness training through 
    the use of written hazard warnings, oral instruction, signs and posted 
    warnings, walkaround training, or other appropriate means that alert 
    persons to site-specific hazards at the mine.
        (f) Site-specific hazard awareness training is not required for any 
    person who is accompanied at all times by an experienced miner who is 
    familiar with hazards specific to the mine site.
    
    
    Sec. 46.12  Responsibility for independent contractor training.
    
        (a)(1) Each production-operator has primary responsibility for 
    ensuring that site-specific hazard awareness training is given to 
    employees of independent contractors who are required to receive such 
    training under Sec. 46.11 of this part.
        (2) Each production-operator must provide information to each 
    independent contractor who employs a person at the mine on site-
    specific mine hazards and the obligation of the contractor to comply 
    with our regulations, including the requirements of this part.
        (b)(1) Each independent contractor who employs a miner, as defined 
    in Sec. 46.2, at the mine has primary responsibility for complying with 
    Secs. 46.3 through 46.10 of this part, including providing new miner 
    training, newly hired experienced miner training, new task training, 
    and annual refresher training.
        (2) The independent contractor must inform the production-operator 
    of any hazards of which the contractor is aware that may be created by 
    the performance of the contractor's work at the mine.
    
    [FR Doc. 99-25273 Filed 9-29-99; 8:45 am]
    BILLING CODE 4510-43-P
    
    
    

Document Information

Effective Date:
10/2/2000
Published:
09/30/1999
Department:
Mine Safety and Health Administration
Entry Type:
Rule
Action:
Final rule.
Document Number:
99-25273
Dates:
This regulation is effective October 2, 2000.
Pages:
53080-53134 (55 pages)
RINs:
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
RIN Links:
https://www.federalregister.gov/regulations/1219-AB17/training-and-retraining-of-miners-engaged-in-shell-dredging-or-employed-at-sand-gravel-surface-stone
PDF File:
99-25273.pdf
CFR: (43)
30 CFR 46.5(a)
30 CFR 48.25(a)
30 CFR 46.7(a)
30 CFR 110(a)
30 CFR 46.9(b)(5)
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