[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]
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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
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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 *
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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
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* Source: Table IV-20, Table IV-25, Table IV-27, Table IV-30, Table IV-33, Table IV-35, Table IV-36 and Table IV-37.
Benefits
Safety and health professionals from all sectors of industry
recognize that training is a critical element of an effective safety
and health program. Training informs miners of safety and health
hazards inherent in the workplace and enables them to identify and
avoid such hazards. Training becomes even more important in light of
certain conditions that can exist when production demands increase,
such as: an influx of new and less experienced miners and mine
operators; longer work hours to meet production demands; and increased
demand for contractors who may be less familiar with the dangers on
mine property.
Although there may be some differences in production technology and
the production environment between the exempt mining industry and other
surface nonexempt mining industries, the data presented in Chapter III
of this document indicate that the lack of training in exempt mines
contributes significantly to the disproportionate number of fatalities
[[Page 53084]]
that occur at such mines. Chapter III points out that in the period
from 1993 to 1997, there were 200 fatalities at surface mines. Of
these, 163 occurred at exempt mines. Thus, exempt mines accounted for
82 percent of all fatalities at surface mines during this period.
During the same period, however, employees at exempt mines accounted
for only 64 percent of the total number of hours worked at surface
mines.
One of the major reasons that exempt mines have experienced a
higher fatality rate than the surface mining industry as a whole is
that smaller operations, those which employ fewer than 20 workers, make
up the vast majority of exempt mines. These small operations, as a
group, have the highest rates of noncompliance with part 48 training
requirements and also the highest fatality rates.
It is plausible to assert that at least some of these fatalities
might have been prevented if victims had received appropriate miner
safety training. Similarly, MSHA believes that compliance with the
requirements of this final training rule will, in turn, reduce the
number of fatalities at formerly exempt mines. As discussed in greater
detail in Chapter III of this document, MSHA estimates that compliance
with the final rule will prevent about 10 fatalities and 557 injuries
per year. MSHA believes that this final rule will make training more
responsive to the needs of the industry and more effective for
individual miners, thereby raising the compliance rate and reducing
mine injuries and fatalities.
IV. Unfunded Mandates Reform Act of 1995
We have determined that, for purposes of section 202 of the
Unfunded Mandates Reform Act of 1995, this rule does not include any
federal mandate that may result in increased expenditures by State,
local, or tribal governments in the aggregate of more than $100
million, or increased expenditures by the private sector of more than
$100 million. Moreover, the Agency has determined that for purposes of
Sec. 203 of that Act, this rule does not significantly or uniquely
affect these entities.
Background
The Unfunded Mandates Reform Act was enacted in 1995. While much of
the Act is designed to assist the Congress in determining whether its
actions will impose costly new mandates on State, local, and tribal
governments, the Act also includes requirements to assist federal
agencies to make this same determination with respect to regulatory
actions.
Analysis
Based on the analysis in the Agency's REA, the yearly compliance
costs (annualized costs plus annual costs) resulting from the final
rule will be approximately $17.9 million, of which about $16.6 million
will be borne by the affected nonmetal operators. Accordingly, there is
no need for further analysis under Sec. 202 of the Unfunded Mandates
Reform Act.
MSHA has concluded that small governmental entities would not be
significantly or uniquely impacted by the regulation. The final rule
will affect 10,152 surface nonmetal mining operations. MSHA data
indicate that there are 185 nonmetal mines affected by this rule that
are state or local government owned.
When MSHA issued the proposed rule, the Agency affirmatively sought
input of any state, local, and tribal government which may be affected
by the training rulemaking. This included state and local governmental
entities who operate sand and gravel mines in the construction and
repair of highways and roads. MSHA mailed a copy of the proposed rule
to these entities. The Agency received comments from several state
agencies and local government entities. No tribal government entity
commented on the proposed rule. A speaker at the Pittsburgh public
hearing on the proposed rule asserted that (in New York State, at
least) there were many mines operated by local governments not counted
or inspected by MSHA and not in compliance with existing part 48
training requirements. Even if this assertion were true, MSHA's
analysis of regulatory impacts indicates that the cost of the final
rule will range from only $1,900 per mine to $15,800 per mine not
currently in compliance with existing part 48 training requirements.
MSHA believes that these costs do not significantly or uniquely impact
these small government entities. MSHA will mail a copy of the final
rule to approximately 185 such entities.
We have determined that, for purposes of Sec. 202 of the Unfunded
Mandates Reform Act of 1995, this rule does not include any federal
mandate that may result in increased expenditures by State, local, or
tribal governments in the aggregate of more than $100 million, or
increased expenditures by the private sector of more than $100 million.
Moreover, the Agency has determined that for purposes of Sec. 203 of
that Act, this rule does not significantly or uniquely affect these
entities.
V. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
In accordance with E.O. 13045, MSHA has evaluated the environmental
health and safety effects of the final rule on children. MSHA has
determined that the final rule will have no effect on children.
VI. Executive Order 13084: Consultation and Coordination With
Indian Tribal Governments
MSHA certifies that the final rule will not impose substantial
direct compliance costs on Indian tribal governments.
VII. Executive Order 12612: Federalism
Executive Order 12612, regarding federalism, requires that
agencies, to the extent possible, refrain from limiting state policy
options, consult with states prior to taking any actions which would
restrict state policy options, and take such actions only when there is
clear constitutional authority and the presence of a problem of
national scope. Because this final rule does not limit state policy
options, it complies with the principles of federalism and with
Executive Order 12612.
VIII. Executive Order 12630: Government Actions and Interference
With Constitutionally Protected Property Rights
This final rule is not subject to Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, because it does not involve implementation of a policy
with takings implications.
IX. Executive Order 12875: Enhancing the Intergovernmental
Partnership
Executive Order (E.O.) 12875 requires executive agencies and
departments to reduce unfunded mandates on State, local, and tribal
governments; to consult with these governments prior to promulgation of
any unfunded mandate; and to develop a process that permits meaningful
and timely input by State, local, and tribal governments in the
development of regulatory proposals containing a significant unfunded
mandate. E.O. 12875 also requires executive agencies and departments to
increase flexibility for State, local, and tribal governments to obtain
a waiver from Federal statutory or regulatory requirements.
MSHA estimates that there are 185 sand and gravel, surface
limestone, and stone operations that are run by State, local, or tribal
governments for the construction and repair of highways and
[[Page 53085]]
roads. When MSHA issued the proposed rule, the Agency affirmatively
sought input of any state, local, and tribal government which may be
affected by the training rulemaking. This included state and local
governmental entities who operate sand and gravel mines in the
construction and repair of highways and roads. MSHA mailed a copy of
the proposed rule to these entities. The Agency received comments from
several state agencies and local government entities. No tribal
government entity commented on the proposed rule.
X. Executive Order 12988: Civil Justice Reform
The Agency has reviewed Executive Order 12988, Civil Justice
Reform, and determined that this rulemaking will not unduly burden the
Federal court system. The regulation has been written so as to provide
a clear legal standard for affected conduct, and has been reviewed
carefully to eliminate drafting errors and ambiguities.
XI. Statutory and Rulemaking Background
Section 115 of the Federal Mine Safety and Health Act of 1977 (Mine
Act), 30 U.S.C. 801 et seq., directed the Secretary of Labor to
promulgate regulations requiring that mine operators subject to the
Mine Act establish health and safety training programs for their
miners. MSHA issued final miner training regulations in 30 CFR part 48
on October 13, 1978 (43 FR 47453). At that time, some industry
representatives expressed concern over the appropriateness of applying
the requirements of part 48 to smaller, less technical surface nonmetal
mining operations. They also maintained that many small nonmetal
operators would have difficulties in complying with part 48.
In 1979, various segments of the metal and nonmetal mining industry
raised these concerns with Congress and requested relief from the
comprehensive specifications of part 48. In response, Congress inserted
language in the Department of Labor's appropriations bill that
prohibited the expenditure of appropriated funds to enforce miner
health and safety training requirements at approximately 10,200 surface
nonmetal work sites. Congress has inserted this language into each
Department of Labor appropriations bill since fiscal year 1980. This
language specifically prohibits the use of appropriated funds to:
* * * carry out Sec. 115 of the Federal Mine Safety and Health
Act of 1977 or to carry out that portion of Sec. 104(g)(1) of such
Act relating to the enforcement of any training requirements, with
respect to shell dredging, or with respect to any sand, gravel,
surface stone, surface clay, colloidal phosphate, or surface
limestone mine.
This language remains in place under MSHA's appropriations
contained in the Omnibus Appropriations Act for 1999, Pub. L. 105-277,
signed by the President on October 21, 1998. The congressional
appropriations rider for fiscal year 1999, however, authorized us to
expend funds to propose and promulgate final training regulations by
September 30, 1999, for operations affected by the prohibition
(``exempt mines''). The 1999 rider also directed us to work with the
affected industry representatives, mine operators, workers, labor
organizations, and other interested parties to promulgate the training
regulations and to base the regulations on a draft submitted to MSHA no
later than February 1, 1999, by the Coalition for Effective Miner
Training (Coalition).
The Coalition is comprised of producers, associations that
represent producers, and three labor organizations. Coalition members
are:
American Portland Cement Alliance
Arizona Rock Products Association
Construction Materials Association of California
China Clay Producers Association
Dry Branch Kaolin Company
Georgia Crushed Stone Association
Georgia Mining Association
Indiana Mineral Aggregates Association
International Brotherhood of Teamsters
International Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers, and Helpers
Laborers-AGC Education and Training Fund
National Aggregates Association
National Industrial Sand Association
National Lime Association
National Stone Association
North Carolina Aggregates Association
Sorptive Minerals Institute
United Metro Materials, Inc.
Virginia Aggregates Association
On November 3, 1998, we published a Federal Register notice (63 FR
59258) announcing seven preproposal public meetings. These meetings
were held in California, Colorado, Georgia, Illinois, New York, Oregon,
and Texas in December 1998 and January 1999 to receive comments from
the public on development of the training rule for miners at exempt
mines. We selected the meeting locations to provide as many miners,
miners' representatives, and mine operators, both large and small, with
the opportunity to attend at least one of the meetings and present
their views. More than 220 individuals, including representatives from
the Coalition, labor, contractors, mining associations, State agencies,
small and large operators, and trainers, attended the meetings. Many
attendees made oral presentations of their views on effective miner
health and safety training. We also received a number of written
comments on pertinent training issues.
The Coalition presented us with a final joint industry/labor draft
proposed rule on February 1, 1999, the congressionally established
deadline. We considered this draft, along with written comments and
oral testimony received during the preproposal period, in developing a
proposed rule, which we published in the Federal Register on April 14,
1999 (64 FR 18498). The notice of proposed rulemaking also included
language that would amend existing part 48 to specify that mines
covered under part 46 are not subject to part 48 training requirements.
The notice of public hearings on the proposed rule appeared in the
Federal Register on the same day as the proposal (64 FR 18528). In May
1999, we held four public hearings in Florida, California,
Pennsylvania, and Washington, D.C., to receive public comment on the
proposal. The rulemaking record closed on June 16, 1999. The agency
received many comments concerning training and retraining of miners. We
held 7 informational meetings around the country to seek input from the
mining community. In response, we received a total of 30 written and
electronic comments. In addition, 67 speakers provided oral comments.
After publication of the proposed rule, we received 136 written and
electronic comments, and 15 speakers provided oral comments. We
received comments from various entities including mine operators,
organized labor groups, such as United Steelworkers of America, United
Mine Workers of America, International Union of Operating Engineers,
State agencies and local municipalities, colleges and universities, and
the Coalition.
XII. General Discussion
Crushed stone and sand and gravel account for the majority of
operations where we have been prohibited from enforcing training
requirements. The United States Geological Survey, United States
Department of the Interior (USGS), derives domestic production data for
crushed stone and sand and gravel from voluntary surveys of U.S.
producers. USGS makes these data available in quarterly Mineral
Industry Surveys and in annual Mineral Commodities Summaries. Annual
crushed stone tonnage ranks first in the nonfuel minerals industry,
with annual sand and gravel tonnage ranking second. USGS data show that
domestic
[[Page 53086]]
production of sand and gravel and crushed stone increased every year
between 1991 and 1999, an indication of the continuing strong demand
for construction aggregates in the United States. The most recent USGS
data show that sand and gravel production increased approximately 14
percent and crushed stone production increased approximately 7 percent
in the first three months of 1999, as compared to the first three
months of 1998.
The number of hours worked at sand and gravel and crushed stone
operations has been increasing steadily since 1991. In 1991, the hours
worked at crushed stone operations totaled approximately 104 million
employee-hours, rising to 121 million employee-hours in 1998.
Similarly, the number of employee-hours at sand and gravel operations
rose from approximately 65 million in 1991 to 75 million in 1998. Based
on hours reported for the first three months of 1999, the total hours
worked for 1999 will exceed the total hours worked in 1998. Although
some of the increase in hours worked may be attributable to longer
workdays, the data show that the aggregates industry workforce is
growing.
Crushed stone and sand and gravel are essential and used widely in
all major construction activities, including highway, road, and bridge
construction and repair projects, as well as residential and
nonresidential construction. Although crushed stone is used mostly by
the construction industry, it is also used as a basic raw material in
agricultural and chemical and metallurgical processes. The construction
industry is by far the largest consumer of sand and gravel.
Consequently, the level of construction activity largely determines the
demand for, and resulting production levels of, these aggregate
materials.
In 1998, President Clinton signed the Transportation Equity Act for
the 21st Century, commonly known as ``TEA-21'' (Pub. L. 105-178), which
authorizes highway, highway safety, transit, and other surface
transportation programs for the fiscal years 1998 to 2003. The demand
for materials produced by the surface nonmetal mining industry is
anticipated to increase substantially due to, in significant part,
transportation infrastructure construction resulting from the enactment
of TEA-21. As the largest public works legislation in the nation's
history, appropriating almost $218 billion for highway and transit
programs, TEA-21 provides a 40 percent funding increase over the levels
for such programs established by the Intermodal Surface Transportation
Efficiency Act of 1991, which was the last major authorizing
legislation for surface transportation.
In addition to the passage of TEA-21, other factors may also
contribute to the continued growth in construction activity and, thus,
the demand for aggregate materials. These include a healthy U.S.
economy in general, low interest rates, and adverse weather conditions
that have damaged and destroyed homes, roads, and bridges in various
parts of the country.
Since fiscal year 1980, the year in which the congressional
appropriations rider took effect, more than 650 miners have been killed
in occupationally related incidents at mines where we cannot enforce
miner training requirements. The rider affects approximately 10,200
surface nonmetal mines and 120,000 miners. Approximately 9,200 of these
sites are surface aggregate operations (sand and gravel and crushed
stone); the remainder are surface operations that mine other
commodities such as clay or colloidal phosphate.
Our data indicate that, of the 243 miners involved in fatal
accidents at surface metal and nonmetal mines from 1993 to 1998, about
80 percent (199 miners) worked at exempt mines. During this same
period, exempt mines accounted for only 64 percent of the number of
hours worked at surface mines. From 1993 to 1997, the annual number of
fatal accidents at exempt mines almost doubled (from 24 fatalities in
1993 to 45 fatalities in 1997). In each of the years 1996 and 1997, 90
percent of fatalities at surface metal and nonmetal mines occurred at
operations affected by the appropriations rider.
A large proportion of exempt mines are smaller operations, which
experience a higher fatality rate than larger operations. For example,
of the 9,200 surface aggregate mines, approximately 4,900 employ five
or fewer miners, and approximately 8,100 employ fewer than 20 miners.
Long-term data show that mines with fewer than six employees are three
times as likely to experience fatalities as mines with 20 or more
workers. Also, mines with between six and 19 employees are more than
two times as likely to have fatal accidents as operations with larger
workforces.
Several other factors may contribute to the number of fatal
accidents, including--
(1) An influx of new and less experienced miners and mine
operators;
(2) Longer work hours to meet production demands; and
(3) Increased demand for independent contractors, who may be less
familiar with the hazards on mine property.
All of these factors are also more likely to exist when production
activity accelerates to meet increases in demand.
We believe that some of these fatalities may have been prevented if
victims had received appropriate, basic miner safety training. Our
fatal accident investigations show that the majority of miners involved
in fatal accidents at mines affected by the rider had not received
health and safety training that complied with the requirements of part
48. In 1997, 80 percent of fatal accident victims at exempt mines had
not received health and safety training in accordance with part 48. In
1998, this increased to 86 percent.
Safety and health professionals from all sectors of industry
recognize that training is a critical element of an effective health
and safety program. Training of new employees, refresher training for
experienced miners, and training for new tasks serve to inform workers
of health and safety hazards inherent in the workplace and, just as
important, to enable workers to identify and avoid those hazards.
Congress clearly recognized these principles by specifically including
training provisions in the Mine Act.
XIII. Discussion of the Final Rule
A. Statutory Requirements
Section 115(a) of the Mine Act authorizes the Secretary of Labor to
promulgate miner health and safety training regulations. Section
115(a), (b), and (c) set forth minimum requirements for miner training
programs. These requirements include:
Each operator must have a health and safety program
approved by the Secretary of Labor;
Each approved training program for new surface miners must
provide for at least 24 hours of training in specified courses,
including:
The statutory rights of miners and their representatives under the
Act;
Use of self-rescue and respiratory devices, where appropriate;
Hazard recognition;
Emergency procedures;
Electrical hazards;
First aid;
Walkaround training; and
The health and safety aspects of the task to which the miner will
be assigned;
Each approved training program must provide for at least
eight hours of refresher training every 12 months for all miners;
Miners reassigned to new tasks must receive task training
prior to performing that task;
New miner training and new task training must include a
period of
[[Page 53087]]
training as closely related as is practicable to the miner's work
assignment;
Training must be provided during normal working hours;
During training, miners must be paid at their normal rate
of compensation and reimbursed for any additional cost for attending
training;
Upon completion of each training program, each operator
must certify, on a form approved by the Secretary, that the miner has
received the specified training in each subject area of the approved
health and safety training plan;
A certificate for each miner must be maintained by the
operator and available for inspection at the mine site;
A copy of the certificate must be given to each miner at
the completion of the training;
When a miner leaves the operator's employ, the miner is
entitled to a copy of his or her health and safety training
certificates;
False certification by an operator that training was given
is punishable under section 110(a) and (f) of the 1977 Mine Act; and
Each health and safety training certificate must indicate
on its face, in bold letters, printed in a conspicuous manner, that
such false certification is so punishable.
The final training rule takes a performance-oriented approach,
where possible, to afford currently exempt operations, particularly
small operations, the flexibility to tailor miner training to their
particular needs and methods of operation.
B. Summary of the Final Rule
The final rule requires you to develop and implement a written
training plan that includes programs for training new and newly hired
experienced miners, training miners for new tasks, annual refresher
training, and site-specific hazard awareness training. Plans that
include the minimum information specified in the final rule are
considered approved by us and are not required to be submitted to us
for formal review, unless you, the miners, or miners' representative
requests it.
The final rule requires new miners to receive 24 hours of new miner
training, with a minimum of four hours of training in specific areas
before they begin work; instruction in additional subjects no later
than 60 days after beginning employment; and the balance of new miner
training no later than 90 days after beginning employment.
Under the final rule, newly hired experienced miners must receive
instruction in the same subjects required for new miners before they
begin work, and in one additional subject no later than 60 days after
beginning work.
Every 12 months, all miners must receive no less than eight hours
of refresher training that addresses relevant occupational health and
safety subjects. The refresher training must include instruction on
changes at the mine that could adversely affect the miners' health or
safety. You have the flexibility to determine other health and safety
subjects addressed in refresher training, although the final rule
identifies a number of recommended subjects.
The final rule requires training for every miner before the miner
is reassigned to a task for which he or she has no previous experience.
Training must also be given when a miner's task has changed. The
training must cover the health and safety aspects and safe work
procedures specific to the task. Site-specific hazard awareness
training is required for persons who do not fall within the definition
of ``miner'' and who are therefore not required to receive
comprehensive training (i.e., new miner training or newly hired
experienced miner training, as appropriate). The final rule also
requires site-specific hazard awareness training for miners employed by
production-operators and independent contractors who move from mine to
mine as a regular part of their employment. These miners are required
to receive comprehensive training but also need orientation in the
hazards at the mines where they will be working.
You are required to certify that a miner has received required
training and retain a copy of each miner's training records and
certificates for the duration of the miner's employment, except that
you must keep certificates of annual refresher training for at least
two years. You must keep training records and certificates for miners
who have terminated their employment with you for at least 60 days
after the employment ends. You may use our existing form for the
certification (MSHA Form 5000-23) or maintain the certificate in
another format, so long as it contains the minimum information required
in the final rule. You are also required to maintain a copy of the
current training plan at the mine or have the capability to produce it
upon request within one business day. You may keep training records and
certificates at the mine site or at a different location, but must
provide copies of the records to us and to miners and their
representatives upon request.
We do not approve training instructors under the final rule.
Instead, training must be provided by a competent person--someone with
sufficient ability, training, knowledge, or experience in a specific
area, who is also able to communicate the subject of the training and
evaluate the effectiveness of the training provided.
The final rule adopts the Mine Act requirement that miners be
trained during normal work hours and compensated at normal rates of
pay. Miners must also be reimbursed for incidental costs, such as
mileage, meals, and lodging, if training is given at a location other
than the normal place of work.
The final rule also allows you, where appropriate, to substitute
equivalent training required by OSHA or other federal or state agencies
to satisfy your training obligations under part 46.
The final rule addresses responsibility for training and gives
primary responsibility to the production-operator for ensuring that
site-specific hazard awareness training is given to employees of
independent contractors who are required to receive such training.
Additionally, independent contractors who employ miners required to
receive comprehensive training under the final rule are primarily
responsible for ensuring that their employees are given training that
satisfies these requirements.
C. Effective Date
Although the proposed rule did not specify an effective date, we
solicited comment in the preamble to the proposal on how much time
should be allowed for the mining community to come into compliance with
the final rule. In the preamble, we stated that we recognized that a
very large number of operations would attempt to come into compliance
at the same time, and we wanted to allow a reasonable period of time
after the final rule's publication for a smooth transition. We also
indicated that speakers at the seven preproposal public meetings had
recommended compliance periods ranging from six months to a year after
the final rule is published. We questioned whether phased-in compliance
deadlines, where certain part 46 requirements would go into effect at
different stages, would facilitate compliance.
We received many comments on this issue. Only a few commenters
favored phased-in compliance deadlines. One commenter suggested that
the final rule designate a six-month preparation period during which
operators could develop their training plans, establish recordkeeping
systems, experiment with
[[Page 53088]]
training methods, and enroll trainers in instruction courses. This
commenter believed that, after the six-month period, the rule should
take effect and be enforceable, except that no citations would be
issued for violations under this part during the first regular MSHA
inspection. Other commenters believed that phased-in compliance
deadlines would only serve as a source of confusion or impose
unnecessary administrative burdens. These commenters strongly
recommended against adoption of phased-in deadlines in the final rule.
Several commenters favored a six-month effective date, stating it
would provide adequate time for compliance if MSHA and state agencies
were available to assist operators in such areas as the development of
training plans and training materials. One commenter indicated that
many operators in his state were already in compliance with existing
part 48 and that these operators would need to take little action to
comply with part 46. One commenter believed that operators should be
required to comply with the final rule no later than 90 days after it
is published in the Federal Register, while another suggested a 24-
month compliance deadline. However, the vast majority of commenters
favored a one-year period before the final rule would take effect and
become enforceable. One commenter who supported a one-year compliance
period stated that many small operators will require assistance in
preparing plans and in locating appropriate trainers and training
materials. Other commenters advocated a one-year compliance period
because they believed it would ensure that the mining community would
be able to implement the final rule in a rational manner. Another
commenter who advocated a one-year deadline stated that we needed to
allow sufficient time for development of training materials appropriate
for the mines affected by the final rule. This commenter also believed
that significant time was needed to ensure that operators, many of whom
are not currently providing training, were familiar with the new
requirements in the final rule.
We have concluded that a one-year effective date, without interim
compliance deadlines, will ensure that production-operators,
independent contractors, and others affected by the final part 46 rule
will have sufficient time to become familiar with the rule's
requirements and take steps to come into compliance. Many operators,
particularly larger mine operators, are currently in compliance with
the majority of part 48 requirements and would need little time to
ensure that their training programs are consistent with the provisions
of the final rule. However, we are concerned that many small operations
affected by this rule have limited or no training programs currently in
place. These small operators typically also have limited resources from
which to develop and implement new training programs. We recognize that
we have an essential role to play in compliance assistance and outreach
effort in the coming year, particularly to small operators. This is
discussed in greater detail below under the heading ``Implementation of
the Final Rule.''
The final rule takes effect one year after the rule's publication
in the Federal Register, giving the mining community an adequate period
of time in which to come into compliance with the rule's requirements.
You must comply with Sec. 46.3(a) and Sec. 46.8(a) as prescribed in the
following table:
Compliance Dates for Production-Operators/Independent Contractors
------------------------------------------------------------------------
Training plans Compliance date
------------------------------------------------------------------------
You must develop and implement a written October 2, 2000.
plan, approved by us under either Sec.
46.3(b) or (c), that contains effective
programs for training new miners and
newly hired experienced miners, training
miners for new tasks, annual refresher
training, and site-specific hazard
awareness training..
------------------------------------------------------------------------
Annual refresher training Compliance dates
------------------------------------------------------------------------
You must provide each miner with no less (1) No later than 12 months
than 8 hours of annual refresher after the miner begins work
training--. at the mine, or no later
than March 30, 2001,
whichever is later; and (2)
Thereafter, no later than
12 months after the
previous annual refresher
training was completed.
------------------------------------------------------------------------
D. Implementation of the Final Rule
Many commenters observed that effective compliance assistance is
critical to the successful implementation of the final rule, and that
small operations in particular are in need of assistance from state and
federal agencies to be able to fulfill their training responsibilities.
A number of commenters addressed the type of assistance that we should
provide to facilitate compliance with the final rule.
We appreciate the commenters suggestions about the types of
resources that would provide the greatest benefit to the mining
community in complying with the final rule. We acknowledge that
compliance assistance for the mining community will be a key element in
the successful implementation of the final rule. We intend to provide
extensive compliance assistance to you as our resources permit, not
only through our staff in Metal and Nonmetal Mine Safety and Health,
but also through our newly formed Educational Field Services Division
in the Directorate of Educational Policy and Development. We also
expect recipients of federal funds through our State Grants program to
play a significant role in assisting you to develop effective training
plans and, at the same time, to satisfy the requirements of the final
rule.
We solicited comments in the preamble to the proposal on whether we
should include examples of model training plans, appropriate for
different types and sizes of mining operations, in a nonmandatory
appendix to the final rule. One of the few commenters who addressed
this issue supported including examples of training plans in a
nonmandatory appendix. Another commenter recommended that we should
encourage mine operators to contact agencies that are designed to
provide compliance assistance services, such as our Educational Field
Services Division and state grantees, instead of providing them as part
of the final rule. This commenter believed that operators would receive
more effective compliance assistance in plan development by reaching
out to appropriate agencies for guidance. This commenter was concerned
that including sample plans as an appendix to the regulation would make
it less likely that operators would contact these agencies for
assistance. We agree with this commenter, and we are also concerned
that placing sample plans in a regulatory appendix could restrict our
flexibility in making future refinements and improvements to the sample
plans. We have concluded that it is more appropriate to provide mine
operators with sample plans as part of an overall compliance assistance
and outreach effort that we will initiate for the mining community
after publication of the final
[[Page 53089]]
rule. We anticipate that other organizations, including state grantees
and large operators, also may develop sample training plans and make
them available to small operators to assist in training plan
development.
A number of commenters who addressed implementation of the final
rule advocated increased funding for our State Grants program. Under
this program, authorized by section 503(a) of the Mine Act, we
distribute federal funds to 43 states and the Navajo Nation to
supplement their mining health and safety programs. Grants are made to
the state agency responsible for miners' health and safety to support
health and safety programs, and most of these funds are used to support
health and safety training courses. State grantees play an essential
role in workplace health and safety by providing effective training to
thousands of miners across the country. MSHA's current budget includes
$5 million for the States Grants program. Our budget request for fiscal
year 2000 would increase that sum to $6.1 million, an increase of 22%.
E. Section-by-Section Discussion
This portion of the preamble discusses each final provision
section-by-section. The text of the final rule is included at the end
of the document.
Section 46.1 Scope
This section adopts with minor changes proposed Sec. 46.1 and
states that the provisions of part 46 set forth mandatory requirements
for the training and retraining of miners and other persons at all
shell dredging, sand, gravel, surface stone, surface clay, colloidal
phosphate, and surface limestone mines. Additionally, Sec. 48.21, the
existing scope section in part 48, is amended by this final rule to
specifically exclude mines that now are covered by the training
requirements of part 46. Part 46 requirements supersede the
requirements of part 48 at those mines that have been subject to the
congressional appropriations rider since fiscal year 1980.
The final rule states that the provisions of part 46 contain the
mandatory requirements for training and retraining of ``miners and
other persons'' at the mines covered by the final rule. Proposed
Sec. 46.1 would have provided that the training requirements of part 46
were for ``miners working'' at the covered mines. This adjustment in
the final rule language recognizes that the final rule's requirements
for site-specific hazard awareness training also apply to persons who
are not miners and who may not in fact work at the mine, such as
visitors or delivery personnel.
We have promulgated these regulations under a separate part of
Title 30 of the Code of Federal Regulations to minimize confusion about
which training requirements apply at what mines. We were concerned that
if we promulgated these regulations as a subpart to existing part 48,
it would make it more difficult for the mining community to distinguish
between the two sets of requirements. The few commenters who addressed
this issue generally favored the placement of these regulations under a
new part.
As explained in the preamble to the proposed rule, the mining
community should recognize that the list of the types of mines where
part 46 will now apply, set forth in this section of the final rule,
mirrors the language of the congressional budget rider and describes
the affected operations in broad terms. The list of mines in this
section does not detail every type of operation that falls within the
scope of these requirements. For example, part 46 training requirements
supersede part 48 requirements at operations that produce marble,
granite, sandstone, slate, shale, traprock, kaolin, cement, feldspar,
and lime, although these operations are not specifically included in
the list of mines in this section.
As stated in the proposed preamble, part 48 remains in effect at
all underground metal and nonmetal mines, all surface metal mines, and
a few surface nonmetal mines, such as surface boron and talc mines.
Operators at those mines continue to be responsible for complying with
the provisions of part 48.
The final rule takes a flexible and performance-oriented approach
to miner health and safety training requirements. This recognizes that
the mines that were subject to the congressional budget rider and that
are now governed by part 46 are different in size and type from many of
the mines under part 48. When the rider was first included as a
restriction to our budget appropriations for fiscal year 1980, some
mining industry representatives contended that the part 48 regulations
were inappropriate for the smaller and less complex operations that are
covered by this final rule. There was concern in the industry that the
part 48 requirements would be extremely burdensome and costly to
implement, forcing many small operations to curtail production during
training periods or go out of business altogether. Industry
representatives also contended that the part 48 regulations were
neither tailored to fit the needs of the various types of mining
operations nor flexible enough to be adaptable to those needs.
Additionally, the legislative history of the Mine Act reflects
Congress' concern that ``miner training may strain the financial
resources of many small operators.'' Conference Report No. 95-461, 95th
Cong., 1st Sess., 63 (1977).
In recognition of these concerns, we have developed this rule with
small businesses in mind. Almost 9,000 of the approximately 10,000
mines affected by the rule have fewer than 20 employees. All of the
operations fall well within the Small Business Administration's
definition of small business, which for the mining industry is a mine
with 500 or fewer employees. Many of these smaller operations typically
do not have a formal health and safety program in place.
A few commenters raised the issue of whether the performance-
oriented requirements of the final rule provide less protection to
miners than the existing training requirements in part 48, contrary to
the mandate of the Mine Act. However, most commenters from industry and
labor supported the proposed rule. In addition, the National Institute
for Occupational Safety and Health (NIOSH) supported the proposed rule,
stating the following:
The National Institute for Occupational Safety and Health
(NIOSH) supports MSHA in its effort to establish new training
requirements for shell dredging, sand, gravel, surface stone,
surface clay, colloidal phosphate, and surface limestone mines. We
believe that the proposed Part 46 regulations should provide
numerous opportunities for effective training. We also support the
performance-oriented approach taken by MSHA to make training
responsive to the needs of small operators by tailoring miner
training to their operations, thus making the training more
meaningful and, as a result, reducing the number of injuries and
fatalities.
Section 101(a)(9) of the Mine Act provides that ``[n]o mandatory
health or safety standard promulgated under this title shall reduce the
protection afforded miners by an existing mandatory health or safety
standard.'' We interpret section 101(a)(9), consistent with the
interpretation adopted by the U.S. Court of Appeals for the D.C.
Circuit, to require that all of the health or safety benefits resulting
from a new standard must be at least equivalent, taken together, to all
of the health or safety benefits resulting from the existing standard.
We have concluded that, especially in a time of rapid technological
advancement and constantly changing mining methods, a more restrictive
interpretation would frustrate Congress' intent to ``provide
[[Page 53090]]
more effective means and measures for improving the working conditions
and practices in the Nation's coal or other mines in order to prevent
death and serious physical harm * * *.'' Section 2(c) of the Mine Act,
30 U.S.C. section 801(c).
The requirements of this final rule amend the training requirements
in part 48 for more than 10,000 surface nonmetal mines, requirements
that we have been prohibited from enforcing at these mines for almost
20 years. We carefully considered the requirements of the final rule in
light of the statutory requirement that no new standard shall reduce
the protection afforded miners by our existing mandatory health and
safety standards. Although the final rule will allow you greater
flexibility in training development and implementation, MSHA has
determined that the new requirements will not reduce the protection
afforded to surface nonmetal miners under existing part 48. While the
means used under part 46 may be more flexible and performance-oriented
than part 48, the ultimate result--the effective safety and health
training of surface nonmetal miners--will be attained under the new
standard.
The final rule is intended to provide production-operators and
independent contractors with the necessary flexibility to devise
training programs that best suit their operations and employees. This
also recognizes that a large number of the mines affected by the final
rule are very small operations, many of which are sand and gravel
operations with limited equipment and facilities. These mines
frequently are small in size, employ few workers, use less complex
equipment, and consist of relatively uncomplicated mining operations.
The type of training appropriate for miners at such mines will differ
from miner training at a large mine or processing facility with highly
specialized and sophisticated equipment and hundreds of employees. The
final rule allows operators, with the assistance of miners and their
representatives, the latitude to tailor miner training programs to the
specific needs of their operations and workforces.
We also wish to emphasize the enhanced safety and health benefits
that result from the reduction in administrative burdens on operators
under the final rule, which will allow them to concentrate on ensuring
that effective training is being given at their specific operations.
For example, the final rule does not require the traditional submission
and review of training plans to gain our approval. Instead, operators
may choose to develop training plans that are considered approved by us
if they meet certain minimum requirements in the final rule. This
approach will allow us to focus our resources on verification of plan
execution and assistance to you in providing effective training at your
mines, rather than on a paper review and approval of more than 10,000
training plans at our offices. Likewise, you and training providers
would be able to focus on the development of training plans that
address the safety and health concerns at your specific operations,
rather than on traditional procedures to gain our approval.
The flexibility included within several sections of the final rule,
offering the option of presenting training in short durations and in
various formats, will allow miners to more easily retain information
and receive effective training in close proximity to their work and
associated hazards. Under existing part 48 requirements for annual
refresher training, training sessions must last a minimum of 30
minutes. Under the part 46 final rule, training sessions may be of any
duration and can be conducted at the work site near potential safety
and health hazards. This approach would allow miners to receive
training at a time and location close to where the training is needed.
Additional safety and health benefits will also result from the
specific requirement in part 46 that provides that training must be
presented in language understood by the miners who are receiving the
training. The final rule also includes specific provisions which
require production-operators to provide information about site-specific
hazards to independent contractors who perform work at their mine.
Similarly, the final rule provides that independent contractors must
inform production-operators of any hazards they might present at the
work site. In addition, unlike existing part 48, the requirements of
this final rule would apply to construction workers who perform work at
mine sites and are faced with similar hazards presented to other
miners.
The final rule also includes a requirement for task training when a
miner is reassigned to a task in which he or she has no previous work
experience, or when a change occurs to the safety and health risks
encountered by the miner while performing his or her tasks. Part 48
only applies to changes in ``regularly assigned tasks,'' and therefore
would not provide for task training for the one-time assignment of
tasks, such as emergency repairs. Accident and injury data show that
miners under the scope of the final rule are routinely injured while
performing such emergency repair tasks, even though it may be a one-
time task. In addition, the part 46 final rule provides that a miner
must be able to demonstrate that he or she can perform a new task in a
safe and healthful manner, even if the miner has had previous
experience or training in the task. Under part 48, a miner is allowed
to perform the new task if he or she has experience or received
training within the previous 12 months. Specific knowledge and skills
can be lost or diminished significantly if they are not used. For these
reasons, the final rule requires miners to demonstrate that they have
retained the needed knowledge and skills to perform the task safely.
In developing the final rule, we have also attempted to develop
practical requirements for effective safety and health training
programs at mines covered by the rule. For example, the final rule does
not require instructors to receive formal approval by MSHA, but instead
provides that ``competent persons'' designated by the production-
operator or independent contractor may instruct miners in subjects in
the areas of the competent persons' expertise.
Additionally, the final rule recognizes the difficulty that some
small operators may have in providing all 24 hours of new miner
training before a miner starts work. Many operators indicated that it
is not practical for all of this training to be provided before the
miner is assigned job duties. In addition, commenters stated that
training can be more effective if it is given over a two-or three-month
period.
The final rule requires that a new miner receive a minimum of four
hours of training in specific subjects before the miner begins work.
The amount of time needed for this training will depend on the size and
complexity of the mine where the training is given. In some cases this
training may require eight hours or more to adequately introduce new
employees to the work environment and mine site hazards, such as at a
larger mine with complex operations. In other cases, no more than the
required minimum of four hours of pre-work training may be needed to
cover the necessary subjects at a very small mine with only a couple of
employees and a few pieces of equipment.
The requirements of the final rule are sufficiently consistent with
existing requirements in part 48, so that those of you who currently
comply with part 48 will have to make little adjustment in your
existing training programs to comply with the part 46 rule. As
mentioned above, part 46 includes
[[Page 53091]]
several different requirements from part 48 which will result in the
enhanced safety and health of workers at the mines covered by the final
rule. These differences include such things as the application of
training requirements to construction workers, the retention of certain
training records for longer durations, and the requirement that
training must be presented in language understood by the miners who are
receiving the training. Certain provisions may require you to make
adjustments to your existing training programs, for example:
----------------------------------------------------------------------------------------------------------------
Part 48 Part 46
----------------------------------------------------------------------------------------------------------------
DEFINITION
48.22(a)(1)(i) This definition of miners does not 46.2 The definition of miner includes any construction
include construction workers.. worker who is exposed to hazards of mining operations.
RECORDS OF TRAINING
(a) Upon a miner's completion of each MSHA approved (a) You must record and certify on MSHA Form 5000-23,
training program, the operator must record and certify or on a form that contains the information listed in
on MSHA Form 5000-23 that the miner has received the Sec. 46.9(b), that each miner has received training
specified training. required under this part.
N/A.................................................... (b)(5) The record must include a statement signed by
the person designated in the MSHA-approved training
plan for the mine as responsible for health and safety
training, that states ``I certify that the above
training has been completed.''
(c) Copies of training certificates for currently (h) You must maintain copies of training certificates
employed miners must be kept at the mine site for 2 and training records for each currently employed miner
years, or for 60 days after termination of employment. during his or her employment, except records and
certificates of annual refresher training under Sec.
46.8, which you must maintain for only two years. You
must maintain copies of training certificates and
training records for at least 60 calendar days after a
miner terminates employment.
----------------------------------------------------------------------------------------------------------------
In the preamble to the proposed rule, we solicited comment on
whether the final rule should specifically allow you the option of
complying with the requirements of part 48 in lieu of part 46. Only a
few commenters addressed this issue. One commenter stated that giving
mine operators the option of complying with part 48 would adversely
affect implementation of the rule. This commenter indicated that
allowing such an option would make our enforcement of training
requirements more difficult. Another commenter supported this option,
stating that many of the operators who are covered by the final rule
currently comply with part 48 and should be allowed to continue to do
so.
The final rule does not allow operators the option of complying
with part 48 in lieu of the requirements of part 46. We have concluded
that providing such an option would provide less effective training and
protection for the miners working at your mines. Part 46 requires
training for construction workers and it takes a proactive approach
toward the training of independent contractor employees that come onto
mine property. We believe that these provisions, along with other
enhancements included in part 46, will result in improved safety and
health for the construction workers, independent contractor workers,
and miners who work near these individuals at the mine. For these
reasons, we have not adopted this compliance option in the final rule.
However, the final rule does allow production-operators and independent
contractors to substitute relevant training given under part 48 for
training required under part 46.
Section 46.2 Definitions
This section of the final rule includes definitions of certain
terms used in part 46. We are providing these definitions to assist the
mining community in understanding the requirements of the rule.
We have adopted most of the definitions included in the proposal
into the final rule. In some cases, we have made changes to the
definitions to respond to concerns of commenters. We explain these
changes in the preamble discussion for each term.
Act. Section 46.2(a) states that all references to the ``Act'' in
the final rule mean the Federal Mine Safety and Health Act of 1977, 30
U.S.C. 801 et seq.
Competent person. Under the final rule, a ``competent person'' must
conduct the training required under this part, and final Sec. 46.2(b)
adopts the proposed definition of this term, with some changes. The
final rule defines ``competent person'' as a person designated by the
production-operator or independent contractor who has the ability,
training, knowledge, or experience to provide training to miners in his
or her area of expertise. The competent person must be able both to
communicate the training subject effectively to miners and to evaluate
whether the training given to miners is effective.
The final definition of ``competent person'' is similar to the
definition included in the proposed rule, but we have made several
changes in the final definition in response to commenters. Instead of
providing that the ``operator'' designate the competent person, as in
the proposal, the final rule provides that the ``production-operator or
independent contractor'' designate the competent person. Although the
proposal would have defined the term ``operator'' to include both
production-operators and independent contractors, we have concluded,
based on comments, that the final rule definition should refer
specifically to both. This emphasizes that independent contractors are
``operators'' under the Mine Act and are responsible for providing
effective training to their employees under the requirements of the
final rule. Use of both terms also eliminates any confusion that the
use of the generic term ``operator'' may create. The proposed
definition also did not include a specific reference to the competent
person's ability to communicate. The final rule includes this
requirement in response to commenters who believe that communication
skills are critical to effective training.
Many commenters generally supported the proposed definition of
``competent person.'' They stated that instructors should not have to
satisfy extensive qualification requirements or obtain MSHA approval
before providing training to miners. A number of commenters indicated
that the flexible provisions proposed would allow operators to have
access to more than adequate resources to ensure quality training for
miners.
[[Page 53092]]
Several commenters recommended that we insert language in the
definition of ``competent person'' that requires instructors to have
knowledge of mining and of the specific hazards miners face on the job.
These commenters believed that this language would enhance the quality
of training. Another commenter suggested that the definition include a
requirement that the competent person have at least one year of mining
experience.
We considered adopting these recommendations in the final rule. We
have concluded, however, that such requirements would not guarantee
quality instruction and may unnecessarily restrict otherwise qualified
persons from providing training under the final rule. We agree with the
views of one commenter who stated that there may be some situations
where mining experience could enhance the quality of training, but that
persons without such experience could still be competent in educating
people and communicating necessary subjects to them. A wide variety of
subjects will be relevant to health and safety conditions at the
various mine sites covered by this rule. Persons who have expertise in
certain relevant areas, but who lack actual mining experience or
experience applicable to mining, can be effective instructors in their
specialized areas. For example, the final rule requires that you
instruct new miners and newly hired experienced miners in the statutory
rights of miners. A requirement that the person who teaches this
subject have either actual mining experience or mine-specific knowledge
would serve no purpose. Someone without mining experience but with a
legal background, such as a paralegal or an attorney familiar with the
provisions of the Mine Act, could provide effective instruction on that
subject. In the same vein, someone without mining experience but with a
medical background, such as a nurse practitioner or an emergency
medical technician, could provide effective instruction in first aid.
Finally, an individual with expertise in electrical hazards on specific
types of equipment that are used in both mining and non-mining
applications could provide appropriate training on those hazards, even
if that person has no mine-specific experience.
Several commenters stated that there are certain skills a person
must have in order to be considered competent. One commenter stated
that a person who conducts training should have not only substantive
knowledge of the subject area but also the ability to effectively
communicate the information to the persons receiving the training. Some
commenters recommended that the definition of ``competent person''
address communication skills, such as lecturing and writing, and the
ability to train adults. Several commenters recommended that, at a
minimum, persons designated to provide training receive specific
instructor training to ensure that they are able to teach miners
effectively. Other commenters stated that the proposed definition was
appropriate and that the final rule should not require specific
training for instructors. These commenters maintained that production-
operators and independent contractors were in the best position to
determine who was capable of providing training and that the final rule
should give them flexibility and latitude in designating competent
persons. A number of commenters also stated that formal instructor
training would not guarantee quality training.
As under the proposed rule, the definition in the final rule does
not specify the type or extent of ability, training, knowledge, or
experience needed for a person to be ``competent'' and, therefore,
qualified to provide training under the final rule. This is consistent
with the overall performance-oriented approach taken in the final rule.
We agree with commenters who were concerned that more stringent
requirements could seriously limit the pool of potential instructors,
without any assurance that these requirements enhance the quality of
the training provided. However, this approach places the responsibility
on production-operators and independent contractors to ensure that
their employees receive adequate health and safety training under the
final rule. Production-operators and independent contractors must
assess whether the person who will provide training has the requisite
expertise, communication skills, and ability to evaluate the training.
The final rule does not adopt the recommendation of some commenters
that the definition of ``competent person'' specifically require
training in effective instruction or communication. However, in
response to commenters who indicated that communication skills were
essential for good training, the final rule definition of ``competent
person'' includes language requiring that the competent person be able
to effectively communicate the training subject to miners.
The final rule, like the proposal, also requires that the competent
person have the ability to evaluate whether the training given to
miners is effective. As addressed in greater detail in the preamble
discussion for Sec. 46.4, the final rule does not specify how the
competent person should conduct such an evaluation. Instead, as part of
our outreach efforts, we intend to provide compliance assistance to you
to help you to identify competent persons to provide training for your
miners.
One commenter stated that the ``competent person'' should be able
to demonstrate the ability to identify hazards and should have the
authority to take prompt corrective measures to eliminate existing or
potential hazards. The definition suggested by this commenter is
similar to the definition of ``competent person'' under OSHA
regulations at 29 CFR 1926.32(f). OSHA regulations define ``competent
person'' as--
* * * one who is capable of identifying existing and predictable
hazards in the surroundings, or working conditions which are
unsanitary, hazardous, or dangerous to employees, and who has
authorization to take prompt corrective measures to eliminate them.
You should not confuse the OSHA definition of ``competent person''
with the same term under this final rule. Under OSHA regulations, a
``competent person'' is not only responsible for worker training, but
also must have the authority to correct workplace hazards. Our final
rule, like existing part 48, limits instructors' responsibilities to
providing training to miners and does not require the instructor to
have the authority to eliminate workplace hazards. Correction of
hazards remains the responsibility of the production-operator and the
independent contractor.
Equivalent experience. Final Sec. 46.2(c) defines ``equivalent
experience'' as work experience where the person performed duties
similar to duties performed in mining operations at surface mines. The
proposed rule included this term in several provisions but did not
define the term. Several commenters questioned what constituted
equivalent experience, stating that the final rule should provide mine
operators with guidance in determining the kinds of experience that
would be considered equivalent, in such areas as construction or public
utility work. In response to these comments, the final rule provides
examples of the types of experience that may be equivalent, such as
work as a heavy equipment operator, truck driver, skilled craftsman, or
plant operator. We intend that these examples serve to illustrate the
types of work that may be counted as equivalent experience under the
final rule, but these examples are not an exhaustive list. As we stated
in the preamble to the proposal,
[[Page 53093]]
``equivalent experience'' includes such things as work at a
construction site or other types of jobs where the miner has duties
similar to the duties at the mine where he or she is employed, in a
work environment similar to the mine environment.
Experienced miner. A number of commenters addressed the proposed
definition of ``experienced miner.'' Like the proposal, final
Sec. 46.2(d) provides that a miner is ``experienced'' if he or she
satisfies one of several criteria. The final rule adopts the criteria
included in the proposal and, in response to comments, adds a provision
that a miner with 12 months of cumulative surface mining or equivalent
experience on or before the effective date of the final rule is an
``experienced miner.''
Section 46.2(d)(1)(i) of the final rule, like the proposal, brings
within the definition of ``experienced miner'' any person employed as a
miner on April 14, 1999--the date that the proposed rule was published
in the Federal Register. Most regularly employed miners will be
``experienced'' under this definition, and therefore not subject to the
new miner training requirements in Sec. 46.5 of the final rule. This is
similar to the approach taken in 1978 when part 48 went into effect.
The definition of ``experienced miner'' in part 48 included all persons
employed as miners on the effective date of the regulation, regardless
of the length of their mining experience or the extent of their health
and safety training. Most miners who were employed on April 14, 1999,
even those at intermittent operations, will have accrued at least
several months of experience by the rule's effective date.
Under final Sec. 46.2(d)(1)(ii), a person will be considered an
``experienced miner'' if he or she has at least 12 months of cumulative
surface mining or equivalent experience on or before the effective date
of the final rule. In the preamble to the proposed rule, we pointed out
that a miner with many years of experience who happened to be out of
work on April 14, 1999, would not be an ``experienced miner'' under the
proposal. We solicited comment on whether this would have an adverse
impact at some operations, particularly those that operate on an
intermittent or seasonal basis. Many commenters responded, expressing
their concern that the proposed definition would mean that miners with
extensive mine employment would not be considered experienced and would
be required to receive new miner training. In contrast, a miner who was
employed on one specific day--April 14, 1999--would be considered
experienced and subject to less comprehensive training requirements.
These commenters strongly recommended that the final rule include
miners who had accrued at least 12 months of experience before the
effective date of the final rule within the definition of ``experienced
miner.'' We agree with the point made by these commenters, and the
final rule adopts the suggestion of these commenters. Additionally, the
final rule clarifies the intent of the proposal that the 12 months of
experience are cumulative and may be accrued in non-consecutive months.
This recognizes that many operations affected by this rule operate
seasonally or intermittently, and that it is not uncommon for miners to
work several months on and several months off. These patterns of
employment make it difficult, if not impossible, for many miners to
accrue 12 months of experience in one continuous period.
Commenters supported this interpretation, but strongly recommended
that the language of the rule itself specifically provide that miners
may accrue experience in non-consecutive months. We agree with
commenters that this interpretation should be clarified, and the final
rule provides that the requisite experience must total at least 12
``cumulative'' months.
The final rule, like the proposal, allows equivalent experience to
be counted toward the required 12 months of cumulative experience. We
recognize that the operations and equipment at many of the mines
covered by this final rule are very similar to the operations and
equipment used at many non-mining operations, such as road construction
sites. Although commenters generally supported credit for equivalent
work under the definition of ``experienced miner,'' one commenter
recommended against such credit. This commenter contended that credit
for equivalent experience would not enhance miner health and safety
because many injuries and deaths occur among newly hired experienced
miners. We acknowledge that miners who are unfamiliar with a new mine
site, even those with extensive experience, may be at risk of injury.
To address such concerns, Sec. 46.6 of the final rule requires newly
hired experienced miners to receive specified training. This training
is intended to ensure that experienced miners are thoroughly familiar
with the particular environment and hazards present at a mine that is
new to them.
Several commenters recommended that the final rule provide guidance
on what constitutes equivalent experience. In response, the term
``equivalent experience'' has been defined in Sec. 46.2 as ``work
experience where the person performed duties similar to duties
performed in mining operations at surface mines.'' This definition is
described in more detail elsewhere in this section of the preamble.
Under the final rule, operators must determine the extent of the
miner's experience, and also whether any non-mining experience is
equivalent. The final rule imposes no specific requirements for
tracking or recording the accumulated experience. It is the
responsibility of production-operators and independent contractors to
determine the miner's experience, based on the miner's work and
training history.
Paragraph (d)(1)(iii) of final Sec. 46.2 includes within the
definition of ``experienced miner'' a person who began employment at a
mine after April 14, 1999, the date of publication of the proposal, but
before the effective date of the final rule, and who has received new
miner training consistent with the requirements proposed under
Sec. 46.5 or with existing requirements for surface miners at
Sec. 48.25. This is similar to a provision included in the proposal and
is intended to provide flexibility to those of you who are already
providing training to your miners under part 48, or who wish to provide
training under the requirements of proposed part 46 before the final
rule takes effect. This provision is not intended to require compliance
with the proposed rule, but was proposed as a voluntary option for
those of you who wanted to begin developing a training program before
the publication of the final rule.
This aspect of the proposed rule received little substantive
comment. However, the final rule clarifies which miners are affected by
this provision. Under the final rule, this paragraph will apply to
miners who began employment as miners after April 14, 1999, but before
the effective date of the final rule. You should be aware that a miner
who began employment between these dates may otherwise be considered
``experienced'' under paragraph (d)(1)(ii) because he or she will
accrue 12 months of experience by the rule's effective date. Miners who
have not accrued the necessary experience and who do not otherwise fall
within the definition of ``experienced miner'' must receive new miner
training under the final rule.
Final Sec. 46.2(d)(1)(iv) provides that a person employed as a
miner on or after the effective date of the final rule who has
completed 24 hours of new miner training under either Sec. 46.5 or
Sec. 48.25 and who has at least 12 months of
[[Page 53094]]
cumulative surface mining or equivalent experience would be an
``experienced miner'' under the final rule. As discussed earlier, the
use of the term ``cumulative'' in the final rule is intended to make
clear that the necessary experience need not have been gained in
consecutive months, but can be accumulated over a period of time. Also
as discussed earlier, the final rule reflects the intent of the
proposal and clarifies that this provision applies to miners who are
employed as miners on or after the effective date of the final rule.
Several commenters recommended that the final rule define the term
``experienced miner'' as a person who either has 12 months of
experience or has received the required 24 hours of new miner training,
but not both. These commenters believed that either training or
experience provided a sufficient basis to consider a miner
``experienced'' under the final rule.
As we indicated in the preamble to the proposed rule, we have
concluded that an ``experienced miner'' should have both training and
work experience. Nothing offered by commenters has persuaded us
otherwise. However, we continue to recognize that many miners currently
working at mining operations affected by the final rule have extensive
experience in the industry and should not be treated as inexperienced
miners when the final rule takes effect. The final rule therefore
provides that a miner will be considered experienced on the rule's
effective date if he or she either has accrued a certain level of
mining experience or has received specified health and safety training.
This recognizes that there will be a period of transition for the
mining community on the effective date of the final rule and is
intended to facilitate compliance. The definition in the final rule,
like that in the proposal, allows equivalent experience to be counted
towards the 12-month requirement.
Final Sec. 46.2(d)(2) is adopted without change from the proposal
and provides that an experienced miner retains that status permanently
under part 46. This is consistent with recent revisions to part 48.
This aspect of the proposal received little comment, but was generally
supported by those commenters who addressed it. This provision applies
in those situations where a miner is returning to work in the mining
industry after being away, either because the miner took a job in
another industry, such as construction, or because he or she had been
laid off. Once a miner attains the status of an ``experienced miner''
under the final rule, he or she is considered experienced permanently.
However, you should be aware that final Sec. 46.6 requires that newly
hired experienced miners complete newly hired experienced miner
training no later than 60 days after beginning their employment.
Independent contractor. Final Sec. 46.2(e), like the proposal,
defines ``independent contractor'' as a person or entity that contracts
to perform services at a mine under this part. This is consistent with
the language of the Act, which includes independent contractors who
perform services or construction at a mine within the definition of the
term ``operator.'' This aspect of the proposal received little comment,
except that several commenters found that the proposal's use of the
term ``operator'' to refer to both production-operators and independent
contractors was confusing. In response to these comments, the final
rule use both ``production-operator'' and ``independent contractor,''
where appropriate, to avoid any misunderstanding.
Mine Site. Section 46.2(f) of the final rule defines the term
``mine site'' for purposes of part 46 as ``an area of the mine where
mining operations occur.'' The final rule defines the term ``mining
operations'' as ``mine development, drilling, blasting, extraction,
milling, crushing, screening, or sizing of minerals at a mine;
maintenance and repair of mining equipment; and associated haulage of
materials within the mine from these activities.'' The proposed rule
used the term ``mine site'' but did not define it. At some mines, there
may be portions of mine property where no mining operations occur and
where mining hazards are limited or nonexistent, such as an office
building that is on mine property but is isolated from mining
activities. This situation may be more common at larger mines with more
extensive operations. The term ``mine site'' does not include such
areas within its definition.
Miner. The term miner is defined in final Sec. 46.2(g)(1)(i) as any
person, including any operator or supervisor, who works at a mine and
is engaged in mining operations. This definition specifically includes
within its scope independent contractors and employees of independent
contractors who are engaged in mining operations. Section
42.2(g)(1)(ii) also clarifies that the definition of ``miner'' includes
any construction worker who is exposed to hazards of mining operations.
The definition of ``miner'' in the final rule differs from the
definition in the proposal, which would have defined ``miner'' as a
person engaged in mining operations integral to extraction or
production. The proposed rule defined ``extraction or production'' as
the mining, removal, milling, crushing, screening, or sizing of
minerals, as well as the haulage of these materials, a narrower range
of activities than the term ``mining operations'' under the final rule.
Many commenters supported the proposed definition of ``miner,''
stating that it was consistent with the overall approach of the
proposal to provide training commensurate with the risks experienced by
the person to be trained. The definition of ``miner'' in the final rule
is intended to address the concerns of several commenters that the
proposed definition was not sufficiently inclusive. Some of these
commenters stated that workers are killed and disabled at mine sites
every year even though they do not directly participate in the
extraction and production process. Several commenters recommended that
the final rule define ``miner'' to include persons who are regularly or
frequently exposed to mine hazards. These commenters were concerned
that limiting comprehensive training to those engaged in activities
that were integral to extraction or production would mean that some
workers exposed to hazards would not have the proper training and would
be unable to recognize the hazards and protect themselves. One
commenter pointed out that individuals who enter mine property to
service, maintain, assemble, or disassemble mine extraction or
production equipment are at risk, but it was not clear that the
proposed definition of ``miner'' would include these workers.
We intend that the definition of ``miner'' include persons who are
engaged in activities related to day-to-day mining operations. The
final rule defines ``miner'' in terms of the activities the individual
performs at the mine, which are activities that would expose workers to
hazards associated with mining operations. We intend that workers who
provide regular maintenance of mining equipment on the mine site be
considered ``miners'' under the final rule. However, the proposed rule
was not clear on this point. To address this, the definition of
``mining operations'' in the final rule specifically includes
maintenance and repair within its scope, and those workers who maintain
and repair equipment would be ``miners.''
You should be aware, however, that Sec. 42.2(g)(2) provides that
maintenance and service workers who do not work at a mine site for
frequent or extended periods are excluded from the definition of
``miner.'' This means that maintenance and service workers who
[[Page 53095]]
come onto mine property infrequently or for short periods of time, and
whose exposure to mine hazards is consequently limited, are not
considered ``miners'' for purposes of part 46.
The final rule, like the proposal, specifically includes operators
and supervisors within the definition of ``miner'' if they are engaged
in mining operations; operators and supervisors who fall within the
definition are covered by the same training requirements in the final
rule as rank-and-file miners. Commenters were generally supportive of
this aspect of the proposal and stated that the type of training that
workers receive should depend on the types of work they are performing
and the hazards that they encounter in performing that work, not on
their job titles. The final rule also clarifies the intent of the
proposal that independent contractors and independent contractor
employees who are engaged in mining operations are also ``miners''
under the final rule. This clarification responds to several commenters
who were concerned that the proposed rule did not make clear that
independent contractors are included within this definition.
Final Sec. 46.2(g)(1)(ii) provides that ``miner'' also means any
construction worker who is exposed to hazards of mining operations.
Although the proposed rule itself was not explicit that construction
workers exposed to mining hazards were included, we stated in the
proposed preamble that the requirements of this rule would apply to
construction workers who work at mines covered by the rule. To ensure
that there is no question under the final rule as to the status of
construction workers, the final definition of ``miner'' specifically
references construction workers.
Our intention under the proposal was that construction workers who
were engaged in activities integral to extraction and production would
be considered ``miners.'' We provided an example in the proposed
preamble of a construction worker who might be a miner under the
proposal. In this example the construction worker was building a new
crusher in an active quarry. A number of commenters seriously
questioned this example, stating that until the crusher is operational,
extraction and production activities have not begun, and the
construction worker would not be a ``miner'' under the definition in
the proposed rule. We agree with commenters that this example may not
be consistent with the language in the proposed rule. These comments
highlight the fact that construction workers, because of the nature of
their work, are not typically engaged in mining operations, such as in
the example in the preamble to the proposal. However, construction
workers who are at an active mine site will be exposed to significant
hazards of mining. Construction workers are also typically at the mine
site for extended periods because of the nature of their work, unlike
many other employees of independent contractors. For these reasons, the
final rule now provides that construction workers who are exposed to
hazards of mining operations are considered ``miners'' under the final
rule. This means that construction workers who work in an active mine
site are considered ``miners'' and must receive comprehensive training
(i.e., new miner training or newly hired experienced miner training, as
appropriate). Construction workers who are not ``miners'' must receive
site-specific hazard awareness training under Sec. 46.11(b). We
solicited comment in the preamble to the proposal on whether we should
promulgate separate training standards for construction workers. Most
commenters who addressed this issue opposed the development of separate
training requirements for construction workers and supported the
application of the final rule to those workers. These commenters
maintained that it was appropriate to include construction workers
under the training regulations that apply to other workers at mine
sites, pointing out that many of the serious injuries and fatalities in
the aggregates industry involve contract construction workers. Only one
commenter expressed strong opposition to applying the requirements of
the final rule to construction workers. This commenter asserted that
including construction workers under the final rule was directly
contrary to the Mine Act's statutory language directing MSHA to
promulgate appropriate training standards specifically governing
construction workers at mine sites. This commenter also maintained that
construction workers should not be subject to mandatory training
requirements until MSHA promulgates separate regulations under section
115(d) of the Mine Act.
We do not agree that the Mine Act mandates that training
requirements for construction workers at mines must be developed as
separate standards. As we indicated in the preamble to the proposal,
the Mine Act does not prohibit the application of part 46 requirements
to construction workers. Section 115(d) of the Mine Act simply directs
the Secretary of Labor to ``promulgate appropriate standards for safety
and health training for coal or other mine construction workers.''
There is nothing in the statutory language that requires independent
training requirements that apply exclusively to mine construction
workers.
Final Sec. 46.2(g)(2) is adopted from the proposal with a minor
change and further clarifies that the definition of ``miner'' does not
include scientific workers, delivery workers, customers, vendors,
visitors, or maintenance or service workers who do not work at a mine
site for frequent or extended periods. The proposed rule would have
excluded ``occasional, short-term maintenance or service workers'' as
well as ``manufacturers' representatives'' from the definition of
miner. The final rule adopts language that we use in our policy under
part 48 to characterize maintenance and service workers who are not
regularly exposed to mine hazards and who are therefore not required to
receive comprehensive training. We determined that it would be more
straightforward to adopt existing terms into the final rule rather than
attempt to define new terms--i.e., ``occasional'' and ``short-term''--
that we intend to mean essentially the same thing. We intend that the
terms ``frequent'' and ``extended'' have the same meaning as under part
48. That is, ``frequent'' exposure is a pattern of exposure to mine
hazards occurring intermittently and repeatedly over time. ``Extended''
exposure means exposure to mine hazards of more than five consecutive
work days. Consequently, maintenance or service workers who are not at
a mine site for frequent or extended periods would not be ``miners''
under the final rule.
Upon further consideration and in response to commenters, we have
not adopted the proposed blanket exclusion of ``manufacturers'
representatives'' from the definition of ``miner''. Instead, under the
final rule, whether or not a manufacturer's representative is a
``miner'' depends on the circumstances of each case. A manufacturer's
representative is a ``miner'' if he or she is engaged in mining
operations at mine sites--such as maintaining or repairing equipment--
for frequent or extended periods. Manufacturers' representatives who
are frequently at mine sites but who are not engaged in mining
operations would not be ``miners'' under this definition. For example,
a manufacturers' representative who is merely marketing mine equipment
[[Page 53096]]
would not be a miner, even if he or she is at a mine site on a daily
basis.
Several commenters suggested that the final rule provide examples
of the types of workers who are considered ``miners.'' Commenters
believed that examples would greatly benefit operators in determining
who is a ``miner'' under the final rule. Although we agree that
examples would provide clarification, we believe that this guidance is
best provided in the compliance materials that we will be developing to
assist production-operators and independent contractors in complying
with the final rule.
Mining operations. As indicated in the preamble discussion of the
definition of ``miner,'' the final rule defines ``miner'' as a person
engaged in mining operations, and final Sec. 46.2(h) defines ``mining
operations''. The proposal would have defined ``miners'' as workers
engaged in mining operations integral to ``extraction and production.''
This definition would also have specifically included the associated
haulage of these materials at the mine. The proposed rule would have
defined ``extraction or production'' as ``the mining, removal, milling,
crushing, screening, or sizing of minerals at a mine.''
``Mining operations'' was not defined in the proposal, and, as
discussed above, essentially replaces the proposed definition of
``extraction or production''. ``Mining operations'' is a slightly
broader definition that includes mine development, drilling, blasting,
extraction, milling, crushing, screening, or sizing of minerals at a
mine; maintenance and repair of mining equipment; and associated
haulage of materials within the mine from these activities. This change
responds to commenters who were concerned that the proposed definition
of ``miner'' was too narrow and that workers who were exposed to
significant mining hazards, such as maintenance workers, would not be
included within the definition. The definition of ``mining operations''
specifically includes maintenance and repair of mining equipment, as
well as haulage of materials within the mine site. Because the
enumerated activities are broader than ``extraction and production,''
they are referred to in the final rule by the term ``mining
operations.''
One commenter stated that the haulage of processed materials from
stockpiles to offsite customers should be excluded from the definition
of ``extraction or production.'' The commenter believed that this would
therefore exclude delivery drivers and customer drivers from the
definition of ``miner.'' In fact, we intended to exclude customers and
delivery personnel from the definition of ``miner.'' To clarify this
point, the definition of ``mining operations'' includes the haulage of
materials within the mine. Haulage of materials away from the mine is
not included in the final rule's definition of ``mining operations,''
and persons who perform only this type of work do not fall within the
definition of ``miner.'' Section 42.2(g)(2) also indicates that
commercial over-the-road truck drivers may be considered ``customers''
under the final rule and excluded from the definition of ``miner.''
The definition of ``mining operations'' includes ``mine
development'', to make clear that certain activities preliminary to
extraction would be included. These activities include such things as
drilling, mining and developmental work on both newly discovered and
established mineral deposits. We have historically considered this
phase of activities part of the extraction phase of mining and thus
subject to our jurisdiction. However, this would not include
exploratory drilling, reconnaissance, search, or prospecting that takes
place off of an existing mine site and that is conducted in the search
of the initial discovery of mineral deposits.
New miner. Section 46.2(i) of the final rule adopts the proposed
definition of ``new miner'' with minor changes. The final rule defines
a new miner as a person who is beginning employment as a miner with a
production-operator or independent contractor and who is not an
experienced miner. As discussed elsewhere in the preamble, the final
rule substitutes the terms ``production-operator or independent
contractor'' for the broader term of ``operator,'' to make it
consistent with the wording of the definition in the final rule for
``newly hired experienced miner.''
Newly hired experienced miner. The definition of this term is
similar to the definition of ``new miner''. ``Newly hired experienced
miner'' was not defined in the proposed rule, but is defined in
Sec. 46.2(j) of the final rule as an experienced miner who is beginning
employment with a production-operator or independent contractor.
Commenters questioned whether certain miners, such as those
employed by an independent contractor who move from mine to mine, would
be considered new miners or newly hired experienced miners. We agree
with these commenters that the proposed rule was not clear on this
distinction, and the definition of ``newly hired experienced miner''
specifically provides that experienced miners who move from one mine to
another, such as drillers and blasters, but who remain employed by the
same production-operator or independent contractor are not considered
newly hired experienced miners and do not need training under Sec. 46.6
of the final rule. However, final Sec. 46.11 specifically requires that
these miners receive site-specific hazard awareness training for each
mine.
Normal working hours. Section 46.10 of the final rule, like the
proposal, requires that training be conducted during ``normal working
hours.'' Final Sec. 46.2(k) adopts the proposed definition of ``normal
working hours'' and provides that ``normal working hours'' means a
period of time during which a miner is otherwise scheduled to work.
This definition is based on a similar provision in part 48 and also
provides that the sixth or seventh working day may be used to conduct
training, provided that the miner's work schedule has been in place
long enough to be accepted as a common practice. This aspect of the
proposed rule did not receive much comment, and the final definition is
adopted with a minor change from the proposal. The final rule
references ``production-operator and independent contractor'' rather
than ``operator.'' As discussed earlier, this change is intended to
eliminate any confusion that may have been caused by the use of the
term ``operator'' in the proposal.
As discussed under Sec. 46.10 of the preamble, we intend that the
schedule must have been in place long enough to provide reasonable
assurance that the schedule change was not motivated by the desire to
train miners on what had traditionally been a non-work day.
Comments received on the proposed definition raised the issue of
whether travel to an off-site location and the training conducted at
that location must be conducted during normal working hours. These
issues are addressed under the preamble discussion for final
Sec. 46.10.
Operator. Operator is defined in Sec. 46.2(l) of the final rule to
mean both production-operators (defined in this section as owners,
lessees, or other persons who operate or control a mine) and
independent contractors who perform services at a mine. This definition
is consistent with the definition of ``operator'' in section 3(d) of
the Act. The term ``operator'' is used throughout the preamble to refer
to the person or entities responsible for providing health and safety
training under part 46. However, we use the terms ``production-
operator'' and ``independent contractor'' in the final rule to
distinguish between the two
[[Page 53097]]
types of operators and to emphasize that independent contractors also
have responsibility for training.
Production-operator. Final Sec. 46.2(m) defines ``production-
operator'' as any owner, lessee, or other person who operates,
controls, or supervises a mine covered by this part. This would mean
the person or entity that actually operates the mine as a whole, as
opposed to an independent contractor who provides services. Commenters
were generally silent on this aspect of the proposal. This definition
is derived from the definition of ``operator'' in section 3(d) of the
Mine Act and is adopted without change from the proposal into the final
rule.
Task. Final Sec. 46.2(n) defines ``task'' as a work assignment or
component of a job that requires specific job knowledge or experience.
The proposal would have defined ``task'' as a component of a job that
is performed on a regular basis. One commenter pointed out that a task
may or may not be performed on a regular basis and questioned why that
limitation was included in the proposed definition. The commenter was
concerned that there could be instances where a miner is assigned to
perform a task on a one-time basis, but a literal reading of the
proposed definition of ``task'' suggests that task training would not
be required in such a situation. We agree with this commenter, and the
wording in the final rule has been clarified accordingly.
This definition identifies the type of job duties that would be
subject to the new task training requirements under final Sec. 46.7.
Under that section, a miner must be provided with training when
reassigned to a task for which he or she has no previous experience, or
when the miner's assigned task is changed.
We and us. These terms are adopted in the final rule to refer to
the Mine Safety and Health Administration (MSHA). We have written the
final rule in the more personal style advocated by the President's
executive order on ``plain language,'' which, among other things,
encourages the use of personal pronouns. Commenters generally supported
the use of plain language in both the regulatory language and the
preamble, and ``we'' and us'' are used throughout the final rule and
preamble to refer to MSHA.
You. The final rule, like the proposal, uses the term ``you'' to
refer to production-operators and independent contractors, consistent
with ``plain language'' concepts. However, a number of commenters
indicated that using ``you'' to refer both to production-operators and
independent contractors created some confusion. In response to these
comments, we have limited our use of ``you'', both in the final rule
language and the preamble, to instances where it is unlikely to be
misunderstood or unclear.
The final rule, unlike the proposal, does not include a definition
of ``hazard training.'' ``Hazard training'' was defined in the proposal
as information or instructions on the hazards a person could be exposed
to while on mine property, as well as on applicable emergency
procedures. In response to comments, the concepts that were outlined in
the proposed definition have been consolidated into final Sec. 46.11,
the section of the final rule that specifically addresses site-specific
hazard awareness training. A separate definition for ``hazard
training'' is not needed as a result, and the proposed definition has
not been adopted in the final rule.
Section 46.3 Training Plans
Section 46.3 of the final rule requires production-operators and
independent contractors to develop and implement a training plan and
also addresses MSHA approval of training plans, how and where a copy of
the training plan must be maintained, and who has access to the plan.
The requirements of section 46.3 apply to production-operators and
those independent contractors who have employees who fit the definition
of ``miner'' under final Sec. 46.2. These requirements have been
adopted, with some changes, from the proposed rule.
In developing the final rule, we have attempted to develop
practical requirements for health and safety training programs at the
wide range of mines covered by part 46. Section 115 of the Mine Act
provides that mine operators shall have a health and safety training
program that shall be ``approved by the Secretary [of Labor].'' The
Mine Act does not set forth a specific method by which we must approve
an operator's health and safety training plan. We believe, therefore,
that the drafters of the Mine Act intended some flexibility concerning
the procedures to be followed by us when implementing MSHA approval of
health and safety training plans. We are also mindful that regulatory
considerations under section 115 of the Mine Act must be balanced with
the congressional intent expressed in section 103(e) of the Mine Act.
This provision directs us not to impose an unreasonable burden on mine
operators, especially those operating small businesses, when requesting
information consistent with the underlying purposes of the Act. As a
result, we believe that the Mine Act provides us with the discretion to
approve health and safety programs by requiring something other than
the operator's submission to us of a proposed training plan.
While not establishing specific procedures to be followed, Congress
did provide minimum requirements in section 115 of the Mine Act to
guide us in determining what should be considered an approved health
and safety training program. First, we interpret section 115(a) of the
Act to require that each operator develop and implement an approved
health and safety training program under which miners are provided
certain minimum training as specified by section 115. For example,
section 115 provides that ``new miners having no surface mining
experience shall receive no less than 24 hours of training if they are
to work on the surface'' and that any training must be provided
``during normal working hours.'' As a result, an operator's training
program can only be approved if the proposed training fulfills the
operator's compliance obligations under section 115 of the Act. In
addition, we believe that in order for an operator's training program
to be approved, it must be in compliance with any minimum requirements
established in training standards developed by us in accordance with
section 115 of the Act. Accordingly, we believe the Mine Act provides
us with the authority to include a requirement in the part 46 final
rule that would consider an operator's health and safety training plan
to be approved by MSHA without formal submission and review, provided
such a plan comports with the minimum requirements of section 115 of
the Mine Act as well as the provisions for approved plans set forth in
this section of the final rule.
Once the final rule goes into effect, we intend to have our
inspectors review your health and safety training plans at the mine
site during the normal inspection cycle. This will be accomplished in a
manner similar to how our inspectors review other mine-specific plans
for compliance. Inspectors and other MSHA personnel who review your
plan would simply determine--
(1) That you in fact have developed a written training plan;
(2) That the written plan contains at a minimum the information
specified in this section; and
(3) That the plan is being implemented consistent with the plan
specifications.
Although final Sec. 46.3 allows you greater flexibility in training
plan content and implementation, MSHA has determined that the new
requirements do not reduce the protection afforded to
[[Page 53098]]
surface nonmetal miners under similar standards in existing part 48.
While the means used under part 46 may be more flexible and
performance-oriented than part 48, the ultimate result--the effective
health and safety training of surface nonmetal miners--will be attained
under the new standard. In addition, because miners are in a good
position to evaluate the health and safety concerns at their workplace,
the final rule includes requirements that provide for the notification
and involvement of miners and their representatives in the development
of approved training plans before implementation. We also wish to
emphasize the enhanced health and safety benefits to miners resulting
from final Sec. 46.3, which will allow us to focus our resources on
verification of plan execution and assistance to you in providing
effective training at your mines, rather than on a paper review and
approval of training plans at our offices. Likewise, you and training
providers can focus on the development of training plans that address
the health and safety concerns at your operation, rather than on
traditional procedures to gain our approval.
Final Sec. 46.3(a) requires production-operators and independent
contractors who have employees who are ``miners'' under the final rule
to develop and implement a written plan, approved by us under either
paragraph (b) or (c) of final Sec. 46.3, that contains effective
programs for training new miners and newly hired experienced miners,
training miners for new tasks, annual refresher training, and site-
specific hazard awareness training. We received few comments on this
aspect of the proposal, and we have adopted this provision unchanged
into the final rule.
Final Sec. 46.3(b) provides that a training plan is considered
approved by us if it contains--
(1) The name of the production-operator or independent contractor,
mine name(s), and MSHA mine identification number(s) or independent
contractor identification number(s);
(2) The name and position of the person designated by you who is
responsible for the health and safety training at the mine. This person
may be the production-operator or independent contractor;
(3) A general description of the teaching methods and the course
materials that are to be used in each training program, including the
subject areas to be covered and the approximate time to be spent on
each subject area;
(4) A list of the persons and/or organizations who will provide the
training, and the subject areas in which each person and/or
organization is competent to instruct; and
(5) The evaluation procedures used to determine the effectiveness
of training.
Plans that include the information listed in this section are
considered ``approved,'' and you are not required to submit the plan to
us for traditional review and approval. The required information is
virtually the same information that would have been required by the
proposal, with a few minor changes, explained below.
A number of commenters supported the proposed guidelines for plan
content, emphasizing the wide variety in size and type of mining
operations falling under part 46 requirements. These commenters stated
that the most effective training plans are those that can be tailored
to the particular operation, directed toward specific mine processes or
hazards or on the accident and injury experience at the mine. These
commenters favored the latitude that the proposed rule would give
production-operators and independent contractors in developing training
programs.
A number of commenters addressed the minimum information that the
proposal would require in the operator's written training plan. One
commenter believed that it was unnecessary for the training plan to
specify the approximate time that would be spent on a particular
subject and recommended that the final rule not require it. This
commenter contended that the time spent on a particular topic is unique
to the persons attending a specific training session, because different
groups learn at different rates.
Commenters questioned the need for the plan to include the name of
the persons providing the training and the subjects in which they are
competent to instruct. These commenters recommended that the final rule
not require this information. Other commenters contended that requiring
instructors to be identified suggests that all training under part 46
must be provided in a classroom setting and recommended that the final
rule clarify that operators can use alternative and innovative training
methods as well as classroom training.
As stated in the preamble to the proposal, our intention is that
the information that operators must include in their training plans
will be sufficient to allow us to make a determination of your
compliance with training plan requirements, without imposing an
unnecessary paperwork or recordkeeping burden. Additionally, the
training plan serves as an essential framework for the operator's
training programs. We expect that operators will direct adequate time
and resources to the development of their training plans. We intend
that the flexible written plan requirements in the final rule will
allow operators to devote the time saved from the reduction in
administrative burden to be directed towards development of their
training programs. Although part 46 gives operators flexibility in
designing their training programs and attempts to minimize paperwork
burdens, we do not intend that part 46 allow operators to deliver
training to miners on an ad hoc basis. Although we strongly encourage
operators to tailor their training programs to the needs of their
particular operations, this does not mean that we advocate that
operators change fundamental components of their miner training
programs from one day to the next, at their convenience.
We do not believe that it is unduly burdensome to require operators
to indicate the approximate amount of time that will be spent on a
particular subject area. As a practical matter, operators must
determine how much time will be spent on a particular subject as part
of the development of an effective training program. We would point out
that the final rule, like the proposal, requires that the
``approximate'' amount of time spent on a particular subject be
included in the training plan. This provides operators with some leeway
in organizing their training and also addresses the concern of one
commenter that different groups learn at different rates of speed. For
example, if an annual refresher training program includes a course in
traffic hazards, the training plan could indicate that the course will
last over a specified range of time, such as from one to two hours. For
the same reasons, requiring a list of competent persons who will
provide training is not unreasonably limiting. It would be acceptable
under the final rule for the operator to include names of all potential
instructors in a particular subject, even though the course will
ultimately be taught by only one of the instructors listed. Further, we
disagree with commenters who contend that requiring a list of
instructors suggests that training must be conducted in a classroom
setting. In fact, final Sec. 46.4(d) specifically provides that
training methods may consist of classroom instruction, instruction at
the mine, interactive computer technology or any other innovative
training methods, alternative training technologies, or any combination
of methods. Additionally, we believe that the final rule's requirements
are sufficiently flexible to allow operators to
[[Page 53099]]
readily address new or emerging health and safety concerns at their
operations. For these reasons, we have not adopted these commenters'
recommendations in the final rule.
Several commenters expressed concern that several of the
informational requirements in Sec. 46.3(b) were inappropriate and too
restrictive for new task training and site-specific hazard awareness
training. Some of these commenters indicated that it was unrealistic to
require an operator to foresee all of the types of task and hazard
awareness training that may be needed for all job categories and to
write them up in the plan. One commenter stated that an operator needs
the flexibility to offer such training by the most qualified person
available at the time the training is to be conducted, and that
requiring an operator to indicate the identity of the competent person
who will provide this training in the plan will restrict this
flexibility. These commenters also contended that evaluation of
training effectiveness, particularly hazard awareness training for
vendors and visitors, would be difficult to accomplish without the
needed flexibility. These commenters therefore recommended that the
required documentation of site-specific hazard awareness training and
new task training be limited to a statement of the training objectives
and the method of instruction.
We disagree that the plan information included in the proposed rule
and adopted into the final rule is unduly restrictive for new task and
hazard awareness training. As discussed above, it would be acceptable
for an operator to include a list of potential instructors for a
particular subject in the training plan, even though only one of the
instructors will actually end up providing the training. Additionally,
most operations covered by the final rule are small and typically
operate with limited equipment, and the number of new tasks miners at
these mines will be assigned is also limited. Including a list of these
tasks in the training plan would not impose an unreasonable burden on
production-operators and independent contractors at many mines. As
mentioned above, the plan could identify several potential instructors
for training in a particular task. Similarly, the plan could summarize
the site-specific hazard awareness training that will be given based on
the type of worker who will receive it. For example, the type of hazard
awareness training given to independent contractors who are at the mine
site to repair mining equipment would most likely differ in scope and
content from the training given to truck drivers who come onto the mine
site for brief periods to deliver supplies. The plan should provide a
description of the training that will be given to different categories
of workers. We believe that the final rule language affords operators
adequate flexibility with regard to task and site-specific hazard
awareness training. Consequently, we have not adopted the
recommendation of these commenters that the final rule reduce the plan
information requirements for these types of training.
One commenter pointed out that if an operator arranges with an
outside organization to provide some or all of the required training,
the operator probably will not know the names of the instructors from
the training organization who will provide the training. For these
reasons, this commenter asserted, it would not be possible for the
operator to indicate the names of the instructors in the training plan.
We agree that in such situations production-operators or independent
contractors will be unable to indicate the specific instructors who
will provide training. We also agree that it is appropriate to allow
flexibility in these cases. The final rule therefore provides that the
plan may indicate the person or organization that will provide the
training, as appropriate. This means, for example, if a production-
operator or independent contractor arranges for some portion of part 46
training to be provided by XYZ Training Company, the plan may simply
indicate that an instructor from that company will provide training in
specified areas. You should be aware, however, that final Sec. 46.9
requires that the training records and certificates for this training
indicate the name of the person who provided the training. Obviously,
the identity of the instructor will be known at the time that the
training is provided, and recording this information should present no
problem to the production-operator or independent contractor.
One other commenter questioned the use of certain terms in the
proposal, and asked whether there was a difference between a training
``plan'' and a training ``program.'' This commenter observed that the
proposal provided that the training plan must cover five different
programs--(1) New miner training; (2) newly hired experienced miner
training; (3) annual refresher training; (4) new task training; and (5)
site-specific hazard awareness training. Each training program is in
turn made up of one or more courses, with each course covering a
subject area. This commenter suggested that if his observation is
correct, then the information in paragraphs (b)(1) through (b)(5)
should be required for each training ``program,'' not each training
``plan.''
This commenter's understanding of the scheme of the plan
requirements is correct. In response to this comment, we have made a
minor change in paragraph (b)(3). The final rule requires that the plan
include a general description of the teaching methods and the course
materials that are to be used in each ``training program.'' If the
operator is using the same teaching methods and course materials for
all programs, the operator need not describe each individually but may
simply state that methods and materials will be used for all programs.
The proposal would simply have required that this description be
provided for methods and materials used in ``providing the training.''
We have also made small clarifications in final Sec. 46.3(b)(1).
Instead of requiring the ``company'' name, as under the proposal, the
final rule requires the ``name of the production-operator or
independent contractor.'' This paragraph now also references the MSHA
independent contractor identification number in addition to the MSHA
mine identification number. This is intended to be consistent with the
fact that both production-operators and independent contractors with
employees who are miners under the final rule are responsible for
developing training plans for their employees. Section 46.3(b)(1) also
indicates that there may be multiple mine names and MSHA identification
numbers indicated on a plan. This may be true in cases where a
production-operator operates several mines and has one training plan
that covers all of the mines. Additionally, independent contractors
typically provide services at multiple mines, and the language of the
final rule addresses those instances where a training plan is relevant
for more than one mine.
The final rule, like the proposal, requires you to list or describe
the evaluation procedures that you will use to determine the
effectiveness of training. Evaluation of the effectiveness of training
must be an integral part of the training process if accidents,
injuries, and deaths resulting from unsafe conditions and work
practices are to be reduced. We have retained a performance-oriented
approach that allows you to select the method that you will use to
determine that training has been effective. Possible evaluation methods
include administering written or oral tests to miners, or a
demonstration by a miner that he or she can perform all required duties
or tasks
[[Page 53100]]
in a safe and healthful manner. You could also evaluate work practices
to ensure that the miner retains and uses the skills, knowledge and
ability to perform his or her duties safely. This evaluation could be
accomplished by periodic work observations to identify areas where
additional training may be needed. In addition, such observations,
along with feedback from miners, could be used to modify and enhance
the training program.
The final rule, like the proposal, uses the term ``effective
programs'' to deal with instances where a training plan, as
implemented, is inadequate or deficient. If we determine that you have
not implemented an effective training program, we will issue a citation
for a violation of Sec. 46.3(a) that indicates how and why the training
program fails to meet this requirement. In cases where the plan as
designed falls short in some way, you must revise your plan to address
the deficiencies that we have identified to abate the violation. In
cases where the plan as designed is adequate but the plan is
inadequately implemented, you must take steps to improve the quality of
the implementation of the plan. In some cases, you may need both to
revise your plan and address inadequacies in implementation. For
example, if you have designated an individual as a ``competent person''
who in fact is incompetent to instruct, you must designate someone else
to provide training as well as revise your plan to include the new
competent person.
Under final section 46.3(a), production-operators and independent
contractors are responsible for maintaining an effective training plan
at all times at their operation. As a result, it will be necessary for
production-operators and independent contractors to monitor the
implementation of training plans to determine whether it is effective
and therefore in compliance with section 46.3(a) of the standard. We
expect production-operators and independent contractors to modify
ineffective or deficient segments of their training plan in order to
bring them into compliance.
The final rule reflects our determination that, while our review of
your written training plan could provide an initial check on the
quality of the written program, such review does not ensure that the
program is successful in its implementation. This is the same approach
taken in the proposal and was the subject of a number of comments. A
number of commenters favored the implicit approval of a training plan
that meets the minimum requirements in the rule, believing that this
approach would allow operators to direct the time saved from the
streamlined administrative process towards better plans and plan
implementation. On the other hand, some commenters recommended that we
maintain oversight of training plans through the plan submission and
review process, to ensure that plans meet minimum standards of quality.
The final rule adopts the approach taken in the proposal, and
provides that a training plan is considered approved by us if it
includes the minimum information specified in this section. This
reflects our conclusion that it is not necessary for production-
operators and independent contractors to formally submit their training
plans to us to achieve the protective purposes of the Mine Act. We
believe that a training program can be effective if the operator
develops and implements a health and safety training plan consistent
with the requirements for an approved plan under this final rule. As we
have indicated elsewhere in this preamble, we will provide compliance
assistance to operators in developing effective training plans as our
resources permit and will develop sample training plans that operators
can use as the basis for their own mine-specific plans. Additionally,
we will direct our resources toward verification of the effectiveness
of training plans in their implementation. Similarly, operators and
training instructors will be able to focus on the development and
administration of training plans tailored specifically to mine
operators' needs rather than on traditional procedures to gain our
approval.
The final rule adopts the proposed rule's alternate process for
plan approval, for those cases where a plan you develop does not
include the minimum required information, where you choose to obtain
traditional approval, or where the miners or miners' representative
requests such approval. Final Sec. 46.3(c) provides that a plan that
does not include the minimum information listed in paragraphs (b)(1)
through (b)(5) must be submitted for review and approval by the
Educational Field Services Division Regional Manager, or designee, for
the region in which the mine is located. The term ``Regional Manager''
refers to the Regional Manager in the Educational Field Services
Division (EFS) of MSHA's Directorate of Educational Policy and
Development (EPD). The EFS Division is divided into an Eastern and a
Western region. In response to requests from the mining community, the
responsibility for the approval of training plans was moved from
District Managers in Coal and Metal and Nonmetal Mine Safety and Health
to the EFS Regional managers or their designees in 1997. Paragraph (k)
of this section includes the titles, postal and e-mail addresses, and
facsimile and telephone numbers of both EFS Managers.
We anticipate that the majority of plans developed under this part
will satisfy the requirements of paragraph (b) and consequently will
not be required to be submitted to us for traditional approval.
However, final Sec. 46.3(c) allows you to voluntarily submit a training
plan for Regional Manager approval. We expect that some of you may
prefer to obtain our traditional approval to ensure that there is no
question that your training plan satisfies minimum requirements. This
aspect of the final rule addresses those concerns. Only a few
commenters addressed this aspect of the proposal, and these commenters
were generally supportive of it. One commenter endorsed voluntary
submission of training plans to us and predicted that it would be used
by many mine operators.
Final Sec. 46.3(c), like the proposal, also allows miners and their
representatives to request our traditional approval if they choose.
Several commenters were opposed to this provision, contending that it
was unnecessary and potentially burdensome and could be subject to
abuse. One commenter was concerned that a single request from a miner
or a miners' representative could trigger our traditional review of a
plan. This commenter maintained that miners and their representatives
have direct and effective recourse if they believe a training plan is
inadequate--they can contact us and request that the plan be reviewed
by an MSHA inspector. This commenter was of the opinion that the
possibility that the inspector may cite the operator for an inadequate
plan is a strong incentive for compliance, and that it was therefore
unnecessary to give miners the right to request MSHA review of a
training plan.
We disagree with those commenters who believe that miners'
participation in the plan development and approval process is
unnecessary. The Mine Act explicitly recognizes that miners have an
important role in assisting mine operators in preventing unsafe and
unhealthful conditions and practices in the nation's mines. The final
rule appropriately allows miners and their representatives the right to
request MSHA review of operators' training plans within two weeks of
receiving the proposed plan from the mine operator in accordance with
paragraph (e). The final rule clarifies the intent of the proposal that
miners and their
[[Page 53101]]
representatives must request MSHA approval within the two-week period
allowed for their review. The proposal was silent on when miners and
their representatives must request MSHA approval, and the final rule
addresses this omission.
Contrary to the assertions of some commenters, we believe that
miners should have a role in the process before the plan is
implemented. We encourage operators to involve the miners at their
mines as much as possible in the plan development process and solicit
miners' input in determining the subject areas to be covered and
emphasized in the various training programs.
In most cases, we anticipate that miners and their representatives
will bring concerns they may have about the training plan to your
attention and that any concerns that miners or their representatives
have will be resolved informally. However, there may be occasions when
attempts at informal resolution of issues raised by miners or their
representatives are unsuccessful. For these reasons, the final rule
provides a mechanism for our direct involvement to resolve issues or
concerns on the part of the miners or their representatives that cannot
be resolved informally.
The proposed rule provided miners and their representatives the
right to request MSHA review of operators' training plans. However,
commenters questioned how an operator would know that miners or their
representatives had requested MSHA review of the operator's plan or,
conversely, how miners and their representatives would know if the
operator requested MSHA review. The proposed rule was silent on these
issues. To address these concerns, we have included additional
notification requirements in the final rule. The final rule requires
miners or their representatives to notify the production-operator or
independent contractor when they request our approval of the training
plan. In addition, the final rule also requires you to notify the
miners or miners' representative when you request our approval of your
training plan. The final rule does not specify how this notice must be
given. We expect that, in most cases, the party requesting MSHA
approval will provide a copy of the request to the operator or the
miners' representative, as appropriate. Where an operator requests MSHA
approval and there is no designated miners' representative, posting of
the request on the mine bulletin board would satisfy this requirement.
These provisions will ensure that affected parties are informed when a
training plan is submitted to MSHA for review and approval.
Section 46.3(d) of the final rule, like the proposal, requires you
to furnish the miners' representative, if any, with a copy of the
training plan at least two weeks before the plan will be implemented
or, if you request MSHA approval of your plan, at least two weeks
before you submit the plan to the EFS Regional Manager for approval. At
mines where no miners' representative has been designated, a copy of
the plan must either be posted at the mine or a copy provided to each
miner at least two weeks before the plan will be implemented or
submitted to the Regional Manager for approval. This ensures that
miners and their representatives are notified of the contents of your
training plan before the plan goes into effect or is submitted to us
for approval. This also provides them with an opportunity to comment on
the proposed plan and suggest additions or improvements. This aspect of
the proposal received little comment and has been adopted without
change into the final rule.
We recognize that at many mines, particularly small operations,
there may be no miners' representative, and the mine may also lack a
mine office and therefore have no appropriate place for posting the
plan. Therefore, the final rule, like the proposal, allows an
alternative method for notifying miners of proposed training plan
contents. Under the final rule, operators may provide a copy of the
plan to each miner in lieu of posting.
Final Sec. 46.6(e) gives miners and their representatives two weeks
after the posting or receipt of the proposed training plan to submit
comments on the plan to you, or to the Regional Manager if the plan is
before the Manager for approval. This provision has been adopted
unchanged from the proposal. This will provide miners and their
representatives with a means to provide input on the training plan,
either to you, if traditional approval is not being sought, or to the
Regional Manager who is reviewing and approving the plan. This aspect
of the proposal received little comment. Although some commenters
questioned allowing miners and their representatives to request MSHA
review and approval of an operator's training plan, no commenters took
issue with giving miners and their representatives the opportunity to
comment on a plan.
Final Sec. 46.3(f) provides that the Regional Manager must notify
you and miners or their representative, in writing, of the approval or
the status of the approval of the training plan within 30 days of
receipt of a training plan submitted to us for approval, or 30 days
from the receipt of the request by the miner or miners' representative
that we review and approve the plan. This requirement has been adopted
with minor changes from the proposal and ensures that affected parties
are notified of the status of our review of the training plan.
This aspect of the proposal received little comment. The proposed
rule did not specify that the 30-day notification requirement would be
triggered by a request by miners or their representatives for our
review and approval of the plan, but the final rule clarifies this
point. Additionally, the proposed rule would have provided that the
notice be given within 30 days of the plan submission by the operator
or the request for approval by miners or their representatives. We have
modified the final rule slightly from the proposal to provide that the
30 day time period will begin to run upon our receipt of the submission
or request. This small change will make it easier for us to track and
fulfill this notification requirement.
As indicated earlier in this preamble, we anticipate that many of
you will not seek our traditional approval of your training plans, and
that in most cases concerns of miners or their representatives will be
resolved informally. In those limited cases where we become directly
involved in approval of a plan, we intend for the Regional Manager to
provide reasonable notice to you and miners or their representatives of
the status of plan approval or perceived deficiencies in the plan. The
notice will also provide parties with a reasonable opportunity to
express their views or offer solutions to the problem, without the need
for detailed procedures.
A few commenters raised the issue of whether an operator could go
ahead and implement a proposed plan pending formal approval by MSHA, in
cases where the plan includes the minimum information required by
Sec. 46.3(b). These commenters maintained that an operator should not
have to delay implementation of safety-related changes while a plan is
undergoing review. One commenter also questioned whether a plan would
be deemed approved if the 30-day deadline has passed and we have not
made a final decision on approval.
Although we agree with commenters that improvements in training
plans should be implemented as quickly as possible, we do not agree
that the final rule should allow operators to implement plans that are
before us for review and approval but that we have
[[Page 53102]]
not yet approved. To allow pre-approval implementation could make the
approval process meaningless. In addition, such a provision would be
inconsistent with the approval procedures contained in other MSHA
regulations. Miners or miners' representatives who submit comments will
expect MSHA to act on their concerns in the same manner that we do in
other regulations. In other regulations a plan does not go into effect
until we approve it. We assume that operators who are anxious to
implement improved training plans would not seek our traditional review
and approval of the plan in the first place, so this would not be an
issue. Consequently, the situation referred to by commenters would most
likely arise where the miner or miners' representative has requested
our review and approval of the plan. We expect that a miner or miners'
representative will request our review and approval because there is
some concern or disagreement about one or more elements of the plan and
the adequacy or effectiveness of the plan as proposed. In such cases,
we believe that we should address the concerns or resolve the
disagreement before the operator implements the plan. Similarly, we are
not in favor of a provision that would deem a plan ``approved'' after a
certain period of time has passed. Such a provision could mean that the
concerns of miners or their representatives would not be addressed or
considered through no fault of their own. We believe that this would be
an unfair result, and we have not adopted such a provision in the final
rule. We will direct our resources to ensure that we review the plans
before us for approval as quickly as possible. We are committed to
expeditious review, approval, and implementation of operators' training
plans. For these reasons, the final rule does not allow plans to be
implemented that are before us for review but that we have not yet
approved.
The requirements of Sec. 46.3(g) are new to the final rule, and we
have included them in response to comments. This new paragraph (g) will
only apply if you submit a plan to MSHA for approval. Under this
paragraph, you must provide the miners' representative, if any, with a
copy of the approved plan within one week after approval. At mines
where no miners' representative has been designated, you must post a
copy of the plan at the mine or provide a copy of the plan to each
miner within one week after approval. This responds to commenters who
were concerned that the proposed rule did not specifically provide that
operators must provide miners or their representatives with copies of
the approved training plan.
Section 46.3(h) of the final rule, like the proposal, provides you,
miners, and miners' representatives the right to appeal the EFS
Regional Manager's decision on a training plan to the Director for
Educational Policy and Development. A Regional Manager's decision on a
plan will be reviewed on appeal by the Director for EPD. Under this
paragraph, an appeal must be submitted in writing within 30 days after
notification of the Regional Manager's decision on the training plan.
The Director for EPD will issue a decision on the appeal within 30 days
after receipt of the appeal. We anticipate that this provision will be
rarely used and expect that when a disagreement arises between us, you,
and miners and their representatives about plan design or content, it
can be resolved without the need for intervention of the Director for
EPD. However, in those rare cases where the parties are unable to come
to terms on the content of a particular training plan, the final rule
provides parties the option of seeking review by the Director for EPD
of the Regional Manager's decision on a plan. As indicated, parties
have 30 days in which to file a written appeal of the Regional
Manager's decision on a plan, and the Director for EPD has 30 days from
the date of receipt of the appeal to reach a decision. This aspect of
the proposal received little comment and is adopted without change into
the final rule.
Final Sec. 46.3(i), like the proposal, requires you to make
available at the mine site a copy of the current training plan for
inspection by us and for examination by miners and their
representatives. If the training plan is not maintained at the mine
site, you must have the capability to provide the plan upon request to
us, the miners, or their representatives. Although the proposed rule
was silent as to how quickly you must provide the plan upon request,
the final rule specifies that the plan must be provided within one
business day of the request. Under the final rule, you have the
flexibility to maintain your training plan at a location other than the
mine site, provided that you are able to produce a copy of the plan
upon request to our inspectors or miners and their representatives
within one business day.
Many commenters supported allowing the training plan to be
maintained at a location away from the mine, observing that many small
mines do not have a formal office. Commenters stated that flexibility
in recordkeeping for these mines was appropriate. However, a few
commenters recommended that a copy of the plan be kept at the mine
site, even if it is in the glove compartment of the supervisor's truck.
As indicated in the preamble discussion of final Sec. 46.9, addressing
recordkeeping requirements, we recognize that many operations covered
by the final rule do not have facilities suitable for extensive
recordkeeping. Additionally, Sec. 103(e) of the Mine Act directs the
Secretary of Labor not to impose an unreasonable burden on mine
operators, especially those operating small businesses, when requesting
information consistent with the underlying purposes of the Act. For
these reasons, we have concluded that it is appropriate to allow mine
operators some flexibility in maintaining their training plans. The
final rule, like the proposal, allows you to maintain your training
plan at a location other than at the mine site, provided that you can
produce a copy upon request by us or miners or their representatives.
Unlike the proposal, the final rule includes a deadline of one business
day after the request for you to provide a copy of the plan. In the
proposal, we solicited comments on whether the final rule should
specify a deadline for an operator to produce a plan after a request
has been made. A number of commenters recommended a deadline of one
business day. We agree with these commenters that this would be
reasonable, given the wide availability of overnight mail, electronic
mail, and fax machines, and we have adopted this deadline in the final
rule.
The requirements of Sec. 46.3(j) have been added to the final rule
in response to comments. Under this paragraph, you must follow the plan
approval procedures of this section whenever you revise your training
plan. In the preamble to the proposal, we indicated our intent that a
training plan that underwent significant revisions would be required to
go through the approval process of this section, just as though it was
a new plan. However, the proposed rule did not include language that
would have required this. A number of commenters strongly recommended
that we include a provision in the final rule that addressed this.
Several commenters questioned what the process should be when
operators revise their training plans. One commenter indicated that
obtaining formal MSHA approval every time a training plan is amended is
a tedious task that in no way relates to protecting workers. Other
commenters recommended that operators be allowed to easily revise the
plan when changing information such as the time spent on
[[Page 53103]]
a particular subject or on the emphasis given to particular training
subjects. These commenters indicated that refresher training needs to
be flexible as operators determine the subjects that need to be
emphasized within the workforce, and that the training plan should not
have to be changed each time such adjustments are made. Other
commenters questioned whether adding a new subject to the task training
program would necessitate a modification of the training plan and
reposting the plan or resubmitting the plan to MSHA for reapproval.
We agree with those commenters who believe that it would be unduly
burdensome to require operators to obtain traditional MSHA approval of
their training plans even when they make minor revisions to their
training plan. We attempted to develop a reasonable definition of
``significant revision,'' so that it would be clear what type of
revisions would require an operator to go through the approval process.
However, we concluded that what constitutes a ``significant revision''
is extremely subjective and incapable of definition. For example, many
people would probably not consider the addition or deletion of one or
two training subjects from a training program to be a significant
revision of the plan. However, in limited cases, particular subjects
may be of concern to miners at the mine, and the miners may consider
minor changes to the subjects covered by a plan significant. Changes in
training methods or course materials may be of little consequence in
most situations. On the other hand, a change from primarily classroom
training to interactive computer-based training could be considered a
significant change by the miners who will be receiving the training,
and they should be notified of this change and have the opportunity to
provide input. Because one type of revision may be significant in one
set of circumstances but not particularly significant in another
situation, we are reluctant to define ``significant revision'' in the
final rule. We are concerned that if the final rule were to define the
term, there may be instances where a change may not fall within the
definition, but nonetheless is something that miners or their
representatives would want to be notified of and have the opportunity
to comment on. For these reasons, the final rule requires you to follow
the procedures for approval in Sec. 46.3 whenever you make a revision
to your training plan, including posting or providing copies of the
proposed plan to miners, or submitting the plan to us for review and
approval.
We anticipate that operators who make minor revisions to their
plans will follow the informal plan approval procedures in final
Sec. 46.3(b) rather than request our traditional approval under
Sec. 46.3(c), even if we have formally approved previous versions of
your training plan. Obtaining traditional MSHA approval of your plan
does not lock you into the traditional approval procedures hereafter.
We expect that when you make minor changes to your plan miners or their
representatives will have limited comments on the revisions. However,
this process will ensure that miners are notified of plan changes that
may appear unimportant, but that represent significant changes to the
miners who are trained under the plan.
The provisions of final Sec. 46.3(k) are new to the final rule and
include the postal and e-mail addresses, phone numbers, and fax numbers
of the Eastern and Western Regional Managers for our Educational Field
Services Division. The information is included in the final rule as a
convenience to mine operators, miners, and miners' representatives who
wish to contact EFS representatives, submit training plans to those
offices for review and approval, or obtain information or assistance
from MSHA on miner training issues. We have also provided the address
of MSHA's Internet Home Page to allow those of you with access to the
Internet to obtain current information about the EFS organization.
In the preamble to the proposal, we requested comment on whether we
should include sample training plans as a nonmandatory appendix to the
final rule. As indicated under the discussion in this preamble on
implementation of the final rule, we have concluded that placing sample
training plans in a regulatory appendix could restrict our flexibility
in making future refinements and improvements to the sample plans.
Instead, we will provide operators with sample plans as part of an
overall compliance assistance and outreach effort for the mining
community. To assist the mining community in complying with the
training plan requirements in the final rule, we will post sample plans
on our Internet Home Page at www.msha.gov. These plans can serve as the
basis for operators' training plans tailored to their specific
operations. Additionally, we are currently developing an interactive
computer-based program that will assist operators in developing
training plans appropriate for their specific operations.
Section 46.4 Training Plan Implementation
Section 46.4 of the final rule, which has been adopted with minor
changes from the proposal, requires that training given under this part
be consistent with the written training plan required under Sec. 46.3
and be presented by a competent person. Under this section, training
may be provided by outside instructors and may include the use of
innovative training methods. This section also allows credit for
equivalent training, provided to satisfy the requirements of the
Occupational Safety and Health Administration (OSHA) or other federal
or state agencies, to satisfy part 46 requirements. Finally, Sec. 46.4
permits short health and safety talks and other informal instruction to
satisfy training requirements under this part.
Although Sec. 46.4 of the final rule will allow operators greater
flexibility in training instruction and implementation, MSHA has
determined that the new requirements will not reduce the protection
afforded to surface nonmetal miners under similar standards in existing
part 48. The flexibility included within final Sec. 46.4, permitting
the option of presenting training in short durations and in various
formats, will allow miners to more easily retain information and
receive effective training in close proximity to their work and
associated hazards. Additional health and safety benefits will result
from the specific requirement in final Sec. 46.4(a)(3), which provides
that training must be presented in language understood by the miners
who are receiving the training.
This section was originally entitled ``Training Program
Instruction.'' However, one commenter, who supported our use of plain
language in the proposal, suggested that a clearer and more appropriate
title for this section would be ``Training Plan Implementation,'' given
that this section addresses various aspects of plan implementation. We
agree that suggested title is more descriptive and makes the final rule
easier to understand, and we have adopted the commenter's suggestion in
the final rule.
Section 46.4(a)(1) of the final rule, like the proposal, requires
that training provided under part 46 be conducted in accordance with
the written training plan. No commenter addressed this aspect of the
proposal, and it has been adopted without change into the final rule.
This provision makes clear that training given to miners to satisfy the
requirements of this part must be consistent with the training programs
[[Page 53104]]
outlined in your plan and the information included in the plan, such as
course content and listed instructors.
Paragraph (a)(2) of final Sec. 46.4 provides that the training must
be presented ``by a competent person.'' A number of commenters
recommended that the final rule allow training to be given ``under the
direction of'' a competent person, to address those situations where a
miner may receive training through an interactive computer program
rather than through traditional face-to-face training from a live
instructor. These commenters stated that this language would be
consistent with the use of state-of-the-art training technologies that
now exist and would give needed flexibility for the use of other
training methods that may be developed in the future, where live
instructors may not directly provide training to miners. Some of these
commenters also indicated that inclusion of the suggested language in
the final rule would allow other individuals to assist the competent
person in providing training, even though those persons may not
themselves meet the definition of ``competent person.''
Although we agree with commenters that instructors should have the
flexibility to use a wide variety of training methods and technologies
in providing training under the final rule, we believe that the
language proposed allows sufficient flexibility to use new and
innovative training methods, and we have not adopted the recommendation
of commenters on this issue. As we indicated in the preamble to the
proposed rule, we strongly encourage the use of computer-based and
other innovative training methods, where a ``competent person'' would
facilitate the delivery of training rather than provide it directly.
Section 46.4(d) of the final rule specifically allows the use of these
types of training methods in part 46 training. However, we are
concerned that if the final rule specified that training may be
provided ``under the direction of'' a competent person, some operators
could wrongly interpret it to mean that computer-based or any other
type of electronic or interactive training method could serve as a
total substitute for a human instructor and human interaction under
part 46. We consider computer-based or other interactive training
technologies to be training ``methods,'' to be employed by an
instructor effectively and appropriately.
We disagree with those commenters who believed that the language of
the final rule should be amended to allow other individuals to assist
the competent person in providing training, even though those persons
may not themselves meet the definition of ``competent person.'' As a
practical matter, a person who does not meet the definition of
``competent person'' does not have the minimum qualifications to
provide effective training. The final rule does not allow such a person
to instruct miners, even if under the oversight or direction of a
competent person.
Like the proposal, the final rule does not require our approval of
training instructors, but instead provides that training be given to
miners by a ``competent person.'' ``Competent person'' is defined in
final Sec. 46.2 as a person designated by the production-operator or
independent contractor who has the ability, training, knowledge, or
experience to provide training to miners in his or her area of
expertise. Additionally, under this definition, the competent person
must be able both to effectively communicate the training subject to
miners and to evaluate whether the training is effective. The
definition of ``competent person'' is addressed in greater detail under
the preamble discussion of Sec. 46.2, the section that contains
definitions of terms used in the final rule.
Many commenters supported the proposed requirements for training
instructors, stating that the final rule should neither impose rigid
minimum requirements for instructors nor require MSHA approval of
instructors. Several commenters indicated that the flexibility of the
proposed provisions would allow operators to have access to more than
adequate resources to ensure quality training for miners. Other
commenters stated that the approach taken in the proposal would
minimize unnecessary administrative burdens on mine operators and allow
them to focus their efforts on the effectiveness of their training
programs. Commenters maintained that this would allow operators to
utilize the best training available, without worrying about whether the
instructor has obtained formal approval from MSHA to provide the
training. Other commenters stated that operators are in the best
position to judge who can most effectively provide required training.
One commenter stated that a formal instructor approval program would
unnecessarily tie the hands of operators in crafting effective,
specifically tailored training programs and would be unlikely to have a
significant positive effect on the quality of training delivered. Still
others asserted that it is impractical to require certification of
instructors, given the widely dispersed operations in the aggregates
industry.
Several commenters observed that certifying an individual as an
instructor does not guarantee that the person knows how to teach.
Instead, commenters asserted that instructors should be judged on the
basis of the effectiveness of the training they provide, not on their
paper credentials. Along the same lines, one commenter noted that an
individual with knowledge and experience in a particular subject may
not be an outstanding speaker in the public arena, but nonetheless can
be more effective in conveying information than an MSHA-approved
instructor. One commenter favored the flexibility in the proposed rule,
but recommended that federal and state agencies continue to provide
training for instructors to assist the instructors in developing new
training methods and techniques. Another commenter stated that there
are many tools available to mine operators to ensure that training is
effective, including support from trade associations and labor
organizations, assistance from our Educational Field Services Division,
videotapes, interactive training tools, literature, and, where
appropriate, instructor training. This commenter endorsed the
flexibility afforded mine operators in designating training instructors
in the proposed rule and supported adopting such an approach in the
final rule.
Several commenters disagreed with the approach taken in the
proposal and instead recommended formal MSHA approval of instructors.
These commenters maintained that operators would be unable to determine
whether someone was competent to provide training. Several of these
commenters were also concerned about whether a person who had extensive
substantive knowledge in one area would have the necessary
communication skills to provide effective training to miners. Some of
these commenters stated that if the existing instructor approval scheme
in existing part 48 is in need of improvement, necessary adjustments
should be made, but that some form of instructor approval should be
adopted in the final part 46 rule to ensure the quality of training.
Under existing part 48, instructors generally obtain our approval
to provide training based on written evidence of their qualifications
and teaching experience. Several commenters questioned whether these
criteria ensured quality training. One commenter stated that becoming a
polished instructor by meeting some criteria for MSHA instructor
approval is secondary to the person being competent and knowledgeable.
[[Page 53105]]
Some of the commenters who supported a formal instructor approval
scheme similar to the part 48 approach recommended that if the final
rule did not require our approval of instructors, trainers should, at a
minimum, receive some form of communications training to ensure that
they will present training materials correctly and effectively. Several
commenters contended that a person who is going to conduct training
needs not only substantive knowledge of the subject area but also the
ability to convey the material effectively to the persons receiving the
training. One commenter suggested that instructors be required to
attend a formal program of instruction to prepare them to instruct
adults.
A number of commenters stated that the final rule should impose no
additional qualifications for trainers beyond those that were included
in the proposed rule. Some indicated that operators should have broad
latitude to use on-site trainers for some, or all, of their training
needs. Other commenters believed that it is impossible to regulate the
quality of instruction with minimum criteria such as academic training,
mining experience, years of training experience, etc., and that an
instructor certification program would not guarantee the quality of
instruction.
The final rule, like the proposal, does not require a formal
program for the approval or certification of instructors, or establish
extensive minimum qualifications for instructors. We are persuaded by
those commenters who insisted that a formal instructor approval program
would not guarantee that training will be effective and that any
benefits realized from a formal program would not justify the
additional administrative burden. We are also persuaded by commenters
who stated that there are many experienced and knowledgeable people
currently working in the industry who can provide effective training in
a wide variety of subject areas, and that their abilities would not be
enhanced by a formal instructor approval program.
We are also persuaded by the statements of some commenters that a
formal instructor approval program would place limitations on the pool
of people who can provide effective training under the final rule,
which could have an adverse impact on the successful implementation of
the rule's requirements. The large majority of mines covered by the
final rule are small operations, employing fewer than 20 people; a
significant percentage of these mines have fewer than 5 employees. The
flexibility of the final rule will enhance their ability to meet their
training obligations. We expect that many small mines will arrange with
outside training providers to conduct some portion of required
training, supplemented by site-specific health and safety training
provided by experienced miners who are competent to instruct in their
areas of expertise.
We have not included in the final rule a requirement that trainers
receive instruction in how to provide training before they serve as
instructors. We agree with the commenters who indicated that such a
requirement would provide no real guarantee of the quality of training
provided and would instead serve as an unnecessary hurdle for an
individual with the knowledge and experience to provide effective
training to qualify as a ``competent person'' under the final rule.
Instead, the final rule's definition of the term ``competent person''
provides that the competent person must be able to effectively
communicate the training subject to miners. We intended in the proposal
that the ability to communicate effectively would be an essential
element of being a ``competent person.'' However, because many
commenters emphasized the importance of communications skills and
expressed concerns about the lack of a reference to these skills in the
proposal, we have included such a reference in the final rule. Under
the final rule you must, therefore, make an assessment of how well a
person can communicate in determining whether he or she is capable of
providing training for your miners. A person with extensive knowledge
in a particular subject area may not be a good choice as an instructor
if he or she is unable to convey the information to miners clearly and
effectively. If a person has extensive knowledge in a subject area but
has weak communication skills, you must either designate someone else
as the competent person or take steps to enhance the person's skills,
such as by arranging for the person to take a course in effective
communication.
Under the final rule, as under the proposal, a competent person
must be able to evaluate whether the training given to miners is
effective. Several commenters suggested that the final rule provide
specific guidance in how the competent person should evaluate the
effectiveness of training. One commenter questioned whether the final
rule should require that a paper-based evaluation form be distributed
to miners at the conclusion of the training session, to be reviewed by
us at some later point. This commenter also asked whether the rule
should require that students be interviewed after the fact to determine
whether the training was adequate.
Another commenter expressed concern over how a competent person who
neither works at the mine site nor regularly visits the site will be
able to evaluate the effectiveness of the training that has been given.
This commenter suggested that the competent person have some mechanism
to follow up to evaluate the effectiveness of the training either in
person or through the operator.
The final rule does not provide specifications for conducting such
an evaluation, because the evaluation method will be determined to a
large extent by the type of training given. For example, a written test
might be appropriate in a traditional classroom setting, while a miner
receiving new task training may be asked to demonstrate to the trainer
that he or she can perform the task in a safe and healthful manner. We
have concluded that the final rule is not the place to address the wide
variety of appropriate evaluation methods that may be used. However, we
intend to provide assistance to production-operators and independent
contractors in all aspects of the final rule's requirements, including
ensuring that the training provided to miners is effective.
A few commenters questioned whether we would have the authority to
revoke an individual's status as a ``competent person'' if we conclude
that the person does not have the ability to deliver effective
training. As a practical matter, because the final rule does not
establish a formal instructor approval program, there is no basis for
including formal rules to revoke such an approval. Instead, in cases
where we determine that an instructor lacks the ability to provide
effective miner training, we will cite the mine operator for a
violation of Sec. 46.4 of the final rule, for failing to designate a
person who is competent to provide required training. To abate the
violation, the operator could either designate someone else to provide
training, or take steps to address the deficiencies we identify in the
abilities of the person providing the training.
Section 46.4(a)(3) has been added to the final rule in response to
comments. It provides that training must be presented in a language
understood by the miners who are receiving the training. This provision
has been added in response to several commenters who were concerned
about language barriers that exist at mines across the country where
miners are not fluent in English. These commenters stated that failure
to address this issue would present a serious obstacle to effective
training and that the final rule should be specific in
[[Page 53106]]
dealing with such situations. We agree with these commenters, and the
final rule has adopted their recommendation. You should be aware that
this requirement applies to both oral presentations and written
materials. For example, if an instructor is giving oral presentations
in Spanish to Spanish-speaking miners who are not fluent in English,
any written materials that are used to supplement the oral presentation
must also be in Spanish. Similarly, if warning signs at the mine serve
as a component of the site-specific hazard awareness training, the
signs must be in a language or languages that are understood by the
persons who come onto the mine site.
Section 46.4(b) has been adopted with a nonsubstantive change from
the proposal and provides that you may conduct your own training or may
arrange for training to be conducted by state or federal agencies;
associations of production-operators or independent contractors;
miners' representatives; consultants; manufacturers' representatives;
private associations; educational institutions; or other training
providers.
The proposal used the term ``associations of operators.'' The final
rule refers to ``associations of production-operators and independent
contractors,'' in response to commenters who stated that the term
``operator,'' referring to both production-operators and independent
contractors, was ambiguous and a possible source of confusion. The
final rule, therefore, includes a specific reference to both
production-operators and independent contractors, to eliminate any
possible misunderstanding. We have also deleted redundant references to
``other operators'' and ``contractors'' that were included in the
proposed rule, and have eliminated the specific reference to ``us.''
Although MSHA works to facilitate effective training, we typically do
not provide miner health and safety training. This will avoid creating
the impression in the final rule that MSHA will serve as a training
provider.
This provision makes clear that you may arrange with a wide variety
of training providers to satisfy the requirements of the final rule.
This aspect of the proposal received little comment, but those
commenters who addressed this provision generally supported it.
Although some production-operators and independent contractors,
particularly larger companies with formal health and safety programs,
may choose to provide all required training in-house, we expect that
many operators will make arrangements with outside organizations to
provide at least some portion of the required training. A wide variety
of effective miner training is available from many types of
organizations across the country, and this section of the final rule
makes clear that you are free to contract with outside training
providers to satisfy your training obligations. In addition, we will be
available to assist you in determining what training is appropriate for
your specific operations.
Section 46.4(c) has been adopted from the proposal with some change
and provides that training required by OSHA or other federal and state
agencies may be used to satisfy the training requirements under part
46, provided that the training is relevant to the subjects required in
part 46. The final rule also specifies that you must document the
training in accordance with Sec. 46.9 of this part. The final rule
includes the added language that the training must be relevant to
training subjects required in this part, to make clear that only some
of the training used to satisfy OSHA requirements or the requirements
of other agencies may be credited under part 46. This provision
recognizes that many operations regulated by us, such as sand and
gravel or crushed stone sites, are also associated with other
facilities not regulated by MSHA, such as OSHA-regulated construction
sites. In many instances, employees may be shared across several
operations under the same management and may perform the same duties at
both sites.
The preamble to the proposed rule stated that training provided in
accordance with Sec. 46.4(c) must be documented in accordance with
Sec. 46.9 to be credited toward part 46 requirements. However, the
proposed rule itself did not specifically require documentation. This
requirement has been included in final Sec. 46.4(c) to ensure that you
are aware of these recordkeeping obligations. This record must not only
reflect the duration of the training but must also provide evidence of
the relevance and equivalency of the training. We anticipate that
miners will in many cases provide you with a record of the equivalent
training that was made at the time that the training was given. In
cases where such a record is not available, you must document the
necessary information in accordance with Sec. 46.9.
A number of commenters supported the acceptance of OSHA training
under part 46, stating that much of the training given to satisfy OSHA
requirements is relevant to hazards and conditions at the mines covered
by this rule. One commenter expressed concern that accepting OSHA or
other training to satisfy part 46 requirements could create serious
problems, because those programs do not cover all of the subjects
required under the Mine Act, such as the rights of miners and their
representatives, or address MSHA health and safety standards. Although
the commenter is correct in his assertion that such subjects typically
would not be covered in OSHA or other types of non-MSHA training, this
provision in no way is intended to relieve production-operators or
independent contractors of their obligations to ensure that those
subjects are covered as part of new miner and newly hired experienced
miner training. A production-operator or independent contractor who
uses OSHA training to satisfy part 46 requirements must ensure that
miners receive instruction in all required subjects. As a practical
matter, we expect that OSHA training and other types of training can be
used to satisfy only a portion of part 46 requirements, because this
training will be relevant only to some of the subjects required under
the final rule.
To illustrate how crediting would work, assume that you hire a new
miner who worked in the construction industry and whose previous
employer provided him with some health and safety training. You
determine that the new miner has received four hours of training on
first aid methods; one hour of training on instruction and
demonstration on the use, care and maintenance of respiratory devices;
six hours of training on the safe operation of a front-end loader; and
four hours of instruction on the following subjects: electrical
hazards, silica, fall prevention and protection, excavations, material
handling and moving equipment.
You would be able to credit the miner for four hours for the first
aid training. Additionally, if the miner will be required to use a
respirator that is the same type as the one for which he received
training, you may credit the miner with one hour of training on this
subject. Further, if the new miner will be operating the same type of
front-end loader that he was trained on as one of his tasks, you may
credit some, if not all, of the six hours of training. Finally, you
would have to determine how much of the training on electrical hazards,
silica, fall prevention and protection, excavations, material handling,
and moving equipment are relevant to the miner's exposure to hazards at
your mine. If you determine that all of the training is relevant, you
could credit the new miner with four hours of training. In this example
you would be able to credit the new miner with up to 15 hours of
training.
[[Page 53107]]
As mentioned above, you must document the previous training in
order for it to be credited. One method of accomplishing this is
obtaining documentation of the previous training. If this documentation
is not available, you must create a written record that identifies the
miner, the training which is being credited, when the training was
given, the duration of the training, the training methods used, and the
person who provided the training. Finally, you must ensure that this
individual receives training in all of the other subject areas required
to be covered under Sec. 46.5 (b) and (c).
Section 46.4(d) adopts the proposed provision with a minor change
and provides that training methods under part 46 may consist of
classroom instruction, instruction at the mine, interactive computer-
based instruction or other innovative training methods, alternative
training technologies, or any combination thereof. The final rule
includes a specific reference to ``interactive computer-based
instruction'' to make clear that we encourage the use of computer
technology in satisfying training requirements under this part. This
provision also recognizes that a combination of different training
methods can be extremely effective. Commenters were generally
supportive of this aspect of the proposed rule.
One commenter stated that the most effective training will include
a blend of classroom instruction and on-site workplace interaction. We
anticipate that many of you will use a combination of approaches to
provide training, including innovative technologies. The classroom may
serve as the most appropriate forum for training on some subjects, such
as instruction in first aid or the statutory rights of miners and their
representatives. On the other hand, mine-site training in such areas as
the hazards of certain equipment or mining operations also has a place
in an effective training program.
Final Sec. 46.4(e), like the proposal, allows employee safety
meetings, including informal health and safety talks and instruction,
to be credited toward new miner training, newly hired experienced miner
training, or annual refresher training requirements. The final rule,
also like the proposal, does not impose a minimum duration for training
sessions. Several commenters recommended that the final rule adopt the
requirement in part 48 that training sessions last at least 30 minutes.
Other commenters suggested, in the alternative, that a 10- or 15-minute
minimum be imposed. One commenter recommended that if the final rule
allows short sessions to be credited toward training requirements,
language should be included in the rule that spells out that only
actual instruction be counted. This commenter was concerned that only a
portion of a 15-minute session given to a group may be devoted to
actual training, taking into account the time required to gather the
group together and to focus their attention on the subject at hand.
Many other commenters supported not requiring a minimum period of
instruction, because in their view some of the best training occurs in
sessions of less than 15 minutes. These commenters maintained that the
rule should not impose an arbitrary restriction on the length of
training sessions. Some commenters stated that trainees can and will
retain information given to them in short concise sessions rather than
in long classroom courses. One commenter stated that short safety
meetings are often pointedly specific and can be given in close
proximity to the particular work to which it relates. This commenter
also stated that such training is often more memorable than material
given in the context of lengthy classroom instruction.
A number of commenters indicated that short training sessions
provided throughout the year can be very effective. One commenter
stated that safety meetings that cover only job assignments and the
expectations for production for the week should not be used to satisfy
the requirements under the rule. However, this commenter added that
safety meetings that review safe work procedures for a specific job or
a specific piece of equipment should count toward part 46 requirements,
provided that the competent person takes steps to ensure that the
training has been effective within a reasonable period of time after
the training has been given. This commenter stated that there are
various ways the competent person could conduct such an evaluation,
including asking informal questions or watching miners perform a task.
We are persuaded by those commenters who advocate flexibility in
the length of training sessions, and this determination is reflected in
the final rule. Final Sec. 46.4(e), like the proposal, requires that
short training sessions that are used to satisfy part 46 requirements
be documented in accordance with Sec. 46.9 of the final rule. This
paragraph also provides that you must include only the portion of the
session actually spent in training when you record how long the
training lasted. This provision has been included in response to
commenters who were concerned that a training session that is 20
minutes in length might include only 10 minutes of actual instruction.
This commenter was of the opinion that credit should be given only for
the time spent in actual training. The added language in this paragraph
responds to these concerns. For example, if safety talks are scheduled
to last 20 minutes but in reality only 10 minutes of that time is spent
in delivering an actual safety or health message, only 10 minutes may
be recorded and credited to training under part 46. Additionally, if
the session addresses other subjects besides those relevant to health
and safety, such as operational or production issues, only that portion
of the session that actually covers relevant health and safety subjects
may be counted and recorded.
Several commenters questioned when a record must be made of such
training. For example, if short sessions are used to satisfy the eight-
hour annual refresher training requirement under Sec. 46.8, must mine
operators document the training at the time that the training session
is completed, or is the record required at the completion of the entire
eight hours of training? We agree with commenters that this aspect of
the proposal requires clarification, and final Sec. 46.9, which
contains the recordkeeping requirements under the final rule, addresses
this issue in detail.
Section 46.5 New Miner Training
Final Sec. 46.5 reflects changes from the proposed rule. The final
rule, unlike the proposal, requires that a minimum of four hours of
training be given to new miners before they begin work at the mine.
Additionally, the final rule adjusts the time periods in which you must
provide new miner training and includes a table that presents when and
what new miner training must be provided. The final rule also clarifies
the oversight under which new miners must work before they complete the
full 24 hours of new miner training.
As in the proposal, final Sec. 46.5 includes minimum requirements
for training new miners when they begin work at a mine, lists subject
areas that the training must address, and identifies the subjects that
must be covered before new miners begin work at the mine and no later
than 60 days after employment begins. The final rule also specifies the
minimum number of hours of instruction required by the Mine Act for new
miner training and the circumstances where previous training may
satisfy new miner training requirements.
As in the proposed rule, Sec. 46.5(a) of the final rule requires
that new miners receive a minimum of 24 hours of
[[Page 53108]]
training. A few commenters questioned the need for a full 24 hours of
training for new miners at very small operations, citing the expenses
associated with training, the lack of complexity of their operations,
and the limited number of hazards that are present at very small
surface mines.
We recognize that there are expenses associated with providing new
miner training. However, we believe that the cost of not providing
effective training for new miners is considerable. As voiced by several
commenters, prudent operators recognize that an investment in health
and safety training for employees makes economic sense. Commenters
pointed out that a safe and healthful workplace is typically a highly
productive one. Attention to health and safety through effective worker
training can minimize workers' compensation expenses and avoid
extensive medical costs and elevated insurance rates that result from
accidents and injuries. We do not agree with commenters who contended
that there are fewer workplace hazards at exempt mines compared to
other mines. Most significantly, we do not have the authority to reduce
the 24-hour new miner training requirement. As noted in the preamble to
the proposed rule, section 115(a)(2) of the Mine Act requires mine
operators to provide at least 24 hours of training to inexperienced
surface miners. It is beyond the scope of our rulemaking authority, and
only within Congress' legislative powers, to reduce the 24-hour new
miner training requirement. Consequently, we are committed to
implementing the congressional directive of section 115(a)(2) of the
Mine Act.
Proposed Sec. 46.5(b) would have required that new miners be given
instruction in certain subject areas prior to beginning work, but the
proposal did not establish a minimum number of hours to be devoted to
this initial training. Instead of requiring a minimum number of hours,
the proposal delineated four subject areas on which new miners would
receive pre-work training to ensure that they are familiar with the
operations and environment at the mine, their job duties, and the
hazards they may encounter at the mine site. We solicited comment on
the appropriateness of this approach, including whether a minimum
number of hours should be devoted to initial training, or whether
certain criteria, such as mine size or complexity or type of operation
or equipment, should govern how much initial training is required. We
also described alternative approaches that we considered in developing
this provision, including requiring that miners receive the full 24
hours of training, or a lesser amount such as two or four hours, before
they begin work duties.
A number of commenters supported requiring a minimum number of
hours of training before new miners begin work. One commenter favored
an eight-hour minimum of a combination of hazard awareness training and
task-specific training before a miner begins work. Another commenter
recommended that the final rule require a minimum number of hours of
pre-work training and that the minimum number of hours be tied to mine
size. This commenter provided as examples an eight-hour minimum for new
miners at small mine operations, a 16-hour minimum at mines of moderate
size, and the full 24 hours of pre-work training at large mines.
Another suggested an eight-hour minimum pre-work training requirement
for operations with five or more miners and a minimum of two hours for
operations employing fewer than five miners. One commenter who
supported an eight-hour minimum stated that small aggregate mines, for
example, could meet the requirement by having the new miner perform
tasks to which he or she will be assigned. A few commenters stated that
all 24 hours of new miner training should be required for some miners,
such as independent contractor employees, before they start work at a
mine, because these miners are frequently not on the site long enough
to receive adequate comprehensive training.
Several commenters strongly advocated adoption of the 24-hour pre-
work training requirement in part 48 and cautioned against allowing
initial training in periods shorter than eight hours. Under part 48, an
operator must give new miners the full 24 hours of training before
assigning miners work at the mine, unless the district manager
specifically permits the operator to do otherwise. Even with district
manager approval, however, part 48 requires operators to provide new
miners with a minimum of eight hours of training in certain subjects
before they begin work duties. One commenter, who supported a 24-hour
pre-work training requirement, maintained that inexperienced miners can
be overwhelmed, often tragically, by too many hazards at one time.
Supporters of the part 48 approach were particularly concerned that not
requiring a specific length of time for training prior to assigning
work duties is inconsistent with the Mine Act and part 48 and would
lead to abuse in favor of production expediency. According to these
commenters, various factors, such as the hazardous nature of mining,
the cyclical nature of work, frequent employee turnover, and the
inexperience of new miners, reinforce the need for comprehensive and
complete training before work duties commence. One commenter added that
tracking the amount of training to fulfill the mandated 24-hour
requirement would be complicated if fewer than eight hours of initial
training were permitted at certain mines based on their size or
complexity.
Many commenters opposed any minimum initial training period
requirement and asserted that it would be unduly burdensome and
unnecessary to apply a minimum number of hours requirement at many
mines, particularly at small mines with few employees and limited
equipment. Several of these commenters endorsed the proposal's emphasis
on a minimum curriculum requirement for new miners before they begin
performing assigned job duties, rather than on the amount of time to be
spent initially training new miners. Some commenters stated that by
requiring a minimum course content, and not a minimum time for initial
training, we would permit a more flexible approach to training that
recognizes the wide variety of mines covered by part 46. This would
allow mine operators to vary the length of individual training topics
depending on their needs, mining operations, and experience of their
new miners. According to the commenters, a ``one-size-fits-all'' miner
training regulation could be costly and ultimately ineffective. One of
these commenters maintained that the minimum curriculum requirement
combined with the overall 24-hour new miner training requirement is, in
fact, protective of the miner. A different commenter pointed out that
specifying a minimum number of hours for initial training based upon
mine size or complexity could have the unintended effect of depressing
mine employment opportunities because operators would limit mine size
to avoid stepping up to the next level of training requirements.
We believe it is imperative that new miners are trained and
familiar with the operations and environment at the mine, their job
duties, and the fundamental hazards they may encounter at the mine site
before they actually commence work duties. After reviewing and
considering the comments received, we have concluded that the final
rule should establish a minimum number of hours of pre-work
[[Page 53109]]
training. As noted elsewhere in this preamble, our fatal accident
investigations show that a majority of miners involved in fatal
accidents at mines that have been exempt from enforcement under the
training rider had not received health and safety training that
complied with part 48. Moreover, miners at smaller mining operations,
many of which are covered by the final rule, also experience higher
fatality rates than those at larger operations. We are concerned that
by not establishing a minimum number of hours of pre-work training we
may inadvertently encourage some operators to devote less than an
appropriate amount of time and attention to the pre-work training
subjects and essential orientation of new miners. As pointed out by
some commenters, inexperienced miners who are unfamiliar with mining
methods in general and with the mine site in particular are especially
vulnerable to the hazards of their new work environment. We believe
that these miners need fundamental and critical health and safety
information relevant to their work sites at the earliest stage of their
employment. In addition, the time spent presenting this information
must be of a sufficient minimum duration to ensure that the training is
thorough, meaningful, and effective to orient the new miner to his or
her workplace and its health and safety hazards.
We have determined, after reviewing the comments, that at least
four hours of pre-work training is needed to provide a new miner with
the knowledge and skills to work safely. For the most part, new miners
do not possess the knowledge and skills they need to work at a mine in
a safe and healthful manner. New miners need some formal and practical
training and practice under observation to acquire the knowledge and
master the skills they need to avoid endangering themselves or others.
For example, a new miner needs to know how to stop the conveyor
belts in use at the mine before he or she begins work there, so that
the miner can stop the belt in the event of an emergency. If a co-
worker becomes entangled in a moving conveyor, quick action is
essential to save the person's life. Unfortunately, some miners have
lost their lives because a fellow miner did not know that he could pull
the stop cord, located less than a foot away, to stop the belt and save
his co-worker. New miners must also be aware that it is unsafe to walk
close to storage piles or on top of surge piles. The miner also needs
to be aware that he or she must exercise extra care around the mine
site, because equipment operators' visibility is typically limited
compared to the visibility of a driver in a car on a highway. New
miners also need to be familiar with the mine's emergency procedures,
including the location of the nearest telephone.
Consequently, final Sec. 46.5(b) requires you to provide no less
than four hours of training on the subjects specified before a new
miner begins work at the mine. The four-hour pre-work training
requirement is a minimum. Clearly, if your mining operation is large
and complex, or if the new miner will be performing multiple tasks,
more time may be necessary to present the pre-work training materials
effectively and in accordance with your training plan. We believe that
you are in the best position, with the assistance of miners and their
representatives, to determine the correct amount of pre-work new miner
training, beyond the four-hour minimum, that is warranted at your
operation. You still have the flexibility to address specific problems
that may exist at your mine and to vary the length of training time
spent on each subject. In this way, you can provide the most effective
learning situations for your new miners before they begin work. The
length of time devoted to each subject may depend on such factors as
the miners' prior experience and familiarity with the aspects of their
new assignments, the mining methods used, the environmental conditions
at the mine, the tasks to be performed, and the mine's health and
safety procedures.
We recognize that some operators of very small mines with limited
equipment and facilities may be initially concerned that the four-hour
minimum presents too large a burden and is unnecessary. However, these
operators should be aware that final Sec. 46.5(e) permits you to
satisfy some part of the pre-work training requirements by having the
miner practice assigned tasks under controlled conditions.
Proposed Sec. 46.5(b) would have required that operators provide
instruction for new miners in four areas before they begin work--
(1) An introduction to the work environment, including a visit
and tour of the mine, or portions of the mine that are
representative of the entire mine. The method of mining or operation
utilized must be explained;
(2) Instruction on the recognition and avoidance of hazards,
including electrical hazards, at the mine;
(3) A review of the escape and emergency evacuation plans in
effect at the mine and instruction on the firewarning signals and
firefighting procedures; and
(4) Instruction on the health and safety aspects of the tasks to
be assigned, including the safe work procedures of such tasks, and
the mandatory health and safety standards pertinent to such tasks.
Proposed Sec. 46.5(d) also would have required that within 60 days
after a new miner begins work at a mine, the balance of the 24 hours of
new miner training would be provided on the following subjects--
(1) Instruction on the statutory rights of miners and their
representatives under the Act;
(2) A review and description of the line of authority of
supervisors and miners' representatives and the responsibilities of
such supervisors and miners' representatives;
(3) An introduction to your rules and procedures for reporting
hazards;
(4) Instruction and demonstration on the use, care, and
maintenance of self-rescue and respiratory devices, if used at the
mine; and
(5) A review of first aid methods.
In the final rule, we have added three subject areas that were
proposed as post-work training subjects under Sec. 46.5(d)(1), (2), and
(3), listed above, to the pre-work training requirements under final
Sec. 46.5(b)(5), (6), and (7). These additional subjects include
miners' rights; company rules and procedures for reporting hazards; and
the hierarchy of authority of supervisors and miners' representatives
and their associated responsibilities. We explained in the preamble to
the proposed rule that instruction in the delineated initial subjects
is intended to ensure that new miners--
(1) Are sufficiently familiar with the hazards at the mine;
(2) Can avoid exposing themselves and others to unnecessary risks;
(3) Can perform their job assignments safely; and
(4) Are able to respond to mine emergencies.
After evaluating comments and testimony, we have concluded that
these objectives are best served by requiring that instruction on the
three additional subjects be given to new miners before they start work
at the mine. Some commenters supported requiring instruction on the
company safety policy and on miners' statutory rights as part of the
pre-work training curriculum. They indicated that allowing operators up
to 60 days to inform miners of this critical information was
inappropriate and not protective of miners. To ensure that the health
and safety of new miners is not compromised or jeopardized, we believe
instruction on the three subject areas must be provided before a miner
begins work at the mine. This information will ensure that a new miner
knows what fundamental steps to take at the mine to prevent or respond
to hazards, who the
[[Page 53110]]
management personnel and miners' representatives are at the mine, and
what specific statutory rights protect the miner from an unsafe or
unhealthful work environment.
The subject areas for new miner training specified in the proposed
rule, which were based on those mandated by section 115(a)(2) of the
Mine Act, have been retained with minor modifications in the final
rule. The topics are sufficiently broad to provide operators with the
flexibility not only to introduce new miners to the mining industry but
also to address particular conditions and practices that present safety
and health hazards at their mines. In addition, as mentioned earlier,
portions of final Sec. 46.5 are presented in a table format to make it
easy for you to determine the subjects that you must cover for new
miner training and when the subjects must be addressed.
We received few comments on the appropriateness of the subject
areas delineated in the proposal. Of those who commented on the pre-
work training subjects, several commenters supported the mandatory
subject areas that were specified in the proposed rule. One of these
commenters maintained that it was unacceptable to give operators total
discretion on the subjects to be covered in new miner training. The
commenter stated that to do so would leave many of these new miners,
who are at high adverse occupational risk, unprepared for work at the
mine.
We believe that it is not enough for new miners to receive only a
general orientation before they begin work. The initial training must
also address potential hazards and risks that new miners may encounter
at the specific mine site where they will work. As a result, we have
clarified the language of Sec. 46.5(b) to provide that the pre-work new
miner training in the specified subject areas must also address site-
specific hazards at the mine.
Several other commenters suggested revisions in the language for
the mandatory pre-work subjects. As a result, final provisions of
Sec. 46.5(b)(1) through (b)(3) vary slightly from the proposed rule.
One commenter recommended that Sec. 46.5(b)(1) include the term
``walkaround training'' within the description of ``introduction to the
work environment.'' We have inserted this term in the referenced
paragraph to clarify that the visit and tour of the mine, which is part
of the introduction to the work environment, is considered the
``walkaround training'' specified in Sec. 115(a)(2) of the Mine Act.
One commenter recommended that the words ``and observed'' be inserted
after the word ``explained'' in proposed Sec. 46.5(b)(1) so that it
would read that ``the method of mining or operation utilized must be
explained and observed'' (emphasis added).
As indicated in the preamble discussion in the proposed rule, we
had intended that proposed Sec. 46.5(b)(1) would read essentially the
same as the commenter has suggested. We inadvertently failed to include
the language we had specified in the preamble in proposed
Sec. 46.5(b)(1). Accordingly, the final rule includes the language that
was mistakenly omitted from the proposal.
Many commenters generally recommended that the final rule language
include more illustrative examples to provide guidance to the regulated
community. One commenter generally asserted that we should designate
mandatory training subjects based on an analysis of accidents and
injuries in our accident and injury database, which he indicated should
show the subjects on which miners need training. Some commenters
specifically recommended that final Sec. 46.5(b)(2) include examples of
hazards, other than just electrical, that might be included as training
subjects. In response to these commenters' suggestions, we have
identified other types of common mine hazards derived from our accident
and injury database as examples of subject areas that might be relevant
for new miner training, including traffic patterns and control, mobile
equipment (haul trucks and front-end loaders), and adverse ground
conditions. We intend these examples to serve only as illustrations of
possible subjects for new miner training. They are not mandatory
topics.
Proposed Sec. 46.5(b)(3) covered general subject areas associated
with emergencies, such as ``escape and emergency evacuation plans in
effect at the mine and instruction on the firewarning signals and
firefighting procedures,'' that would be required before a new miner
begins assigned work duties. One commenter stated that comprehensive
first aid training should be addressed, while another commenter
advocated that emergency medical procedures be covered during this
initial training period. We believe that it is not necessary for miners
to receive first aid training and/or a review of first aid methods
before they start work. MSHA regulations at 30 CFR 56.18010 already
require that an individual capable of providing first aid be available
on all shifts, which ensures that a trained person is on site in case
of emergency. For this reason, the final rule does not require first
aid subjects to be covered as part of the pre-work training. On the
other hand, instruction on emergency medical procedures at the mine
will ensure that new miners will know from the beginning what steps
must be taken in the event of a medical emergency. We have included
this topic as part of pre-work training for new miners in paragraph
(b)(3). Basically, training on emergency medical procedures could
include, as appropriate, a briefing on what steps a miner should take
in the event of a medical emergency, the identification of the people
at the mine who have satisfactorily completed first aid training, the
locations of first-aid equipment and supplies, arrangements that the
mine operator has made for 24-hour emergency medical assistance (e.g.,
with local physicians, medical services, or hospitals, and with
emergency transportation services), and where the information on these
arrangements are posted at the mine.
Proposed Sec. 46.5(c) would have allowed new miners to practice
under the ``close supervision of a competent person'' to satisfy the
Sec. 46.5(b)(4) requirement for training on the health and safety
aspects of an assigned task, provided that hazard recognition training
for the assigned task is given before the miner actually performs the
task. Although we did not define the term ``close supervision'' in the
proposed rule, we explained in the preamble that we considered it to
mean that the ``competent person is in the immediate vicinity of the
miner and focusing his or her complete attention on the actions of the
miner being trained.'' We also stated that ``[a] miner would not be
considered under `close supervision' if the competent person is
occupied with any other task or is not in close proximity to the
miner.''
The term ``close supervision'' was also used in proposed
Sec. 46.5(a), which would have required a new miner who had not
completed the full 24 hours of new miner training to work ``under the
close supervision of an experienced miner.'' Our rationale for this
proposed requirement, which is modeled after a similar requirement in
Sec. 48.25(a), was to protect the health and safety of a new untrained
miner until the miner had completed new miner training.
We received considerable comment on the use of the term ``close
supervision'' in Sec. 46.5 (a) and (c) of the proposed rule. Generally,
commenters did not object to the concept that inexperienced personnel
should be closely supervised or have a mentor until they acquire the
knowledge, experience, and skills to perform their assigned duties in a
safe and healthful manner.
[[Page 53111]]
A clear majority of commenters, however, provided unfavorable
comment on the term ``close supervision,'' either disagreeing with our
interpretation of how it would apply in proposed Sec. 46.5(a) and (c)
or disagreeing with the use of the term altogether. One sentiment
echoed by most commenters was that the description of ``close
supervision'' in the proposed rule preamble was too restrictive and
appeared to prohibit the experienced miner in proposed Sec. 46.5(a) and
the competent person in proposed Sec. 46.5(c) from training or
supervising several people at one time. One commenter indicated that
the level of supervision required in Sec. 46.5(a) should be different
from the level required in Sec. 46.5(c) and suggested that
``appropriate supervision'' would be the more suitable term for
purposes of the requirements in Sec. 46.5(a). Another commenter stated
that some of the work assignments appropriate for new miners to
practice under Sec. 46.5(c) may be relatively low-risk activities that
do not warrant the undivided attention of a competent person.
Similarly, commenters expressed specific concern with proposed
Sec. 46.5(a) because of the impracticality of requiring an experienced
miner to provide close supervision, as that term was described, of a
miner who had not received the full 24 hours of new miner training. In
some cases, commenters noted, for each miner trainee needing close
supervision, the activities of one experienced miner could be
restricted for up to 60 days under this provision. Several commenters
pointed out that the greatest impact and burden of complying with these
requirements would be on small operators, who have limited personnel
and resources and cannot afford to dedicate personnel to supervise new
miners in lieu of performing their normal work duties. One commenter
indicated that operators' flexibility to provide quality training
tailored to their needs would be weakened if they had to choose between
providing 24 hours of new miner training quickly or assigning
experienced miners to supervise the new miners for lengthy periods.
Commenters also suggested more limited periods of time, ranging from 16
to 40 hours, for a new miner to be closely supervised by an experienced
miner under Sec. 46.5(a). One commenter maintained that continuous
oversight of the new miner under Sec. 46.5(a) was necessary for a
limited period of time, but after that, new miners should be able to
work, but not alone or in an area where an experienced miner cannot see
or hear the new miner. A few commenters characterized a situation where
the new miner could work under a ``loose buddy system'' until the miner
received adequate training to function safely and independently. Still
another stated that new miners should be ``under observation'' so that
negative effects do not result.
A few commenters recommended that if the final rule adopts the term
``close supervision,'' the rule should define the term so that people
understand what is required without having to refer to the preamble.
Some urged that either the term ``close supervision'' be more flexible
and redefined, or another term or standard be adopted instead. Many
commenters stated that the decision on how closely the miner trainee
should be supervised should be within the discretion of the operator
and based on the level of perceived risk, evaluating the hazards
involved in performing work duties and the employee's work experience.
Some commenters recommended that the final rule define ``close
supervision'' as ``appropriate attention commensurate with the risks of
the supervised activity.'' Another commenter suggested that the
experienced miner (or competent person) should be ``close enough to the
trainee so that they can communicate in a normal conversational tone''
while the new miner is performing tasks that may expose the miner to
mining hazards. Some commenters objected to the term ``supervision''
since it could be incorrectly interpreted to mean that the rank-and-
file worker, who may be the designated competent person or experienced
miner, was operating in a supervisory capacity or as an agent of the
operator.
We carefully considered the comments received and admit that our
characterization of the term ``close supervision'' in the proposal was
too narrow and did not afford the flexibility that operators need to
provide effective new miner training. We also recognize that the term
caused considerable confusion and disagreement among commenters. We do
not agree, however, with many of the commenters' suggested alternatives
because many of the alternatives are themselves vague or subjective.
In Sec. 46.5(a) of the final rule, we adopt the proposed approach
of requiring an experienced miner to provide adequate oversight until
the new miner has received all 24 hours of new miner training. However,
we do not use the term ``close supervision,'' adopting instead
performance-based language. Until the training is completed, an
experienced miner designated by the operator will be required to
observe the new miner's work practices to ensure the miner is not
jeopardizing his or her health or safety or the health or safety of
others. We do not mean that the experienced miner must abandon his or
her normal duties or be assigned to oversee only one new miner.
However, in some situations, that may be necessary to ensure that this
performance-based standard is met. The relevant portion of final
Sec. 46.5(a) is revised to read as follows:
Miners who have not received the full 24 hours of new miner
training must work where an experienced miner can observe that the
new miner is performing his or her work in a safe and healthful
manner.
For reasons similar to those stated above, we do not adopt in the
final rule the term ``close supervision'' used in proposed
Sec. 46.5(c), which we have redesignated Sec. 46.5(e) in the final
rule. Instead, the final rule requires that practice to fulfill the
requirement for training under Sec. 46.5(b)(4) on the health and safety
aspects of an assigned task must be performed under the ``close
observation'' of a competent person. We would like to emphasize that
practice is only allowed to fulfill the Sec. 46.5(b)(4) training
requirement and not all pre-work training requirements. We recognize
that having the miner practice the actual assigned task may be an
appropriate method of training for the health and safety aspects of the
task, provided that training, and not production, is the primary goal
of performing the task. This interpretation is consistent with
Congress' intent that training include a period conducted in
circumstances that duplicate actual mining facilities. Conference Rep.
No. 95-461, 95th Cong., 1st Sess., 63 (1977).
Proposed Sec. 46.5(d), which has been redesignated Sec. 46.5(c) in
the final rule, listed the training subjects that new miners would be
required to receive no later than 60 days after they begin work at the
mine. As discussed earlier, proposed Sec. 46.5(d) would have required
``review of first-aid methods'' within this 60-day time frame, and this
requirement has been retained in Sec. 46.5(c) of the final rule. For a
variety of reasons, a requirement of comprehensive first-aid training
for many miners is impracticable. A comprehensive first-aid course may
last eight hours or longer, a significant portion of the required 24
hours of new miner training. There are a number of other areas that
could be addressed during this time that will be of greater overall
benefit to the health and safety of miners in the workplace.
Additionally, one commenter was
[[Page 53112]]
concerned that some people are not physically, mentally, or emotionally
equipped to perform first-aid procedures. Nevertheless, the commenter
stated that a review of first-aid methods is valuable.
As noted in the proposed rule preamble, you would not be required
to hire an approved first-aid instructor or obtain first-aid teaching
equipment to provide this instruction. Typically there are miners and
designated supervisors at the mine who have already been trained in
first aid under the requirements of 30 CFR part 56. One of these
individuals could serve as a competent person to provide the first-aid
review for new miners.
A few commenters suggested that instruction on respiratory
protection be required before a miner begins work at a mine. Although
this is an important topic, the final rule does not require new miners
to receive training in this subject before they start work. We have
determined that allowing this training to take place after miners begin
work is unlikely to adversely affect miners' health and safety. As a
practical matter, part 48 allows operators to cover this subject after
the miner begins work but within 60 days, in those cases where the
district manager permits a production-operator or independent
contractor to provide new miners with training after assignment of work
duties. Additionally, if the miner must use respiratory protection
while performing his or her duties, the operator must provide
appropriate instruction in the use of the respirator under
Sec. 46.5(b)(4) of the final rule, which requires that instruction on
the health and safety aspects of the tasks assigned be provided to a
new miner before the miner begins work. For that reason, we do not
believe that every new miner needs instruction on respiratory
protection before their work commences and have not included language
to that effect in the final rule.
As previously mentioned, Sec. 46.5(d) of the proposed rule would
have required that the balance of statutorily-mandated new miner
training be given within 60 days after the new miner begins work. For
practical reasons outlined in the preamble, we explained that the 60
days would be measured in calendar days, not working days, and we
solicited comment on the proposed schedule and approach.
Only a handful of commenters agreed with the proposed 60-calendar
day time limit; the majority of commenters did not support the time
period in the proposed rule. A few commenters opposed the 60-day time
frame or any suggestions to extend the time frame. Instead, these
commenters urged the adoption of a shorter time period. They endorsed
either the full 24 hours of new miner training being given before the
miner begins work duties, or a 30-day time period after the miner
begins work within which to complete the remainder of the 24 hours of
new miner training. One of these commenters stated that some employers
might exploit a longer time period and deprive short-term miners of
valuable training. One commenter echoed general concerns that, if the
time frames are promulgated as proposed, part 46 will provide less
protection for new miners than existing part 48.
Most commenters who opposed the proposed 60 calendar-day period,
however, suggested that either a 60 working-day or longer time period
be allowed for completion of the mandated 24 hours of new miner
training. One commenter who advocated a 60 working-day deadline
appeared to believe, mistakenly, that we intended to require a
production-operator or independent contractor to provide new miner
training even when the proposed 60 calendar days occurred during a
period that a miner was laid off and not working for the operator. This
was not our intent. However, we want to make it clear that if this
worker were rehired as a miner, an operator employing that miner would
be required to provide new miner training in accordance with Sec. 46.5,
although certain new miner training taken previously could be credited
towards the new miner training requirements. This is discussed in
greater detail below.
A few commenters indicated their concern with recouping the
substantial economic investment incurred for training if the balance of
training were required to be provided within the proposed 60-day
period. In justifying support for a 60- to 120-day time period, one
commenter stated that the investment in training should be required
closer to the time when the operator decides whether to permanently
hire that miner. Another commenter, concerned with the employee
turnover in the industry, made a similar argument and recommended
increasing the 60-day time period to 6 months, or to stipulate that the
training should be completed within six months or by the end of the new
miner's probationary period, whichever comes first. Still others noted
that a 60-day period would not be practical for miners who are employed
intermittently. One of these commenters proposed a one-calendar-year
time period for intermittent employees to complete the required 24
hours of new miner training.
For a number of reasons, the majority of commenters opposing the
proposed 60-day period maintained that it was too short, especially for
small operations. They either favored a 90 calendar-day time period to
complete new miner training or stated that they would not object to
such a requirement. Some asserted that it would be unduly burdensome
for operators to schedule with outside training contractors within the
proposed 60-day time period and then to provide such training several
times within one year as new miners are hired. They argued that a 90
calendar-day period was preferable and that in most cases would add up
to approximately 60 working days. One commenter endorsed the 90
calendar-day option since it seemed to balance the needs of employers
to arrange for training and the needs of new miners to receive training
in a timely manner.
Under Sec. 46.5(c) of the final rule, you must provide training on
the balance of the new miner subject areas required under the Mine Act
(i.e., self-rescue and respiratory devices, and first aid review) no
later than 60 days after a new miner begins work at the mine. In
addition, after a miner has received the required minimum training in
Sec. 46.5(b) and (c), Sec. 46.5(d) allows the operator up to 90 days to
provide training on other subjects that promote occupational safety and
health for their new miners and to count the amount of time spent on
presenting that instruction towards fulfillment of the 24-hour new
miner training requirement. Until the new miner receives the full 24
hours of new miner training, the miner must work where an experienced
miner can observe that the new miner is working in a safe and healthful
manner.
In this way, operators may select and present additional,
appropriate instruction on subjects that will increase the knowledge
and ability of each new miner to work safely, avoid injuries and
illness, and respond to emergencies at the mine. Operators will also
gain the added flexibility to spread the remainder of the 24 hours of
new miner training over a longer period of time, if they wish, which
should alleviate some of their concerns with scheduling training and
meeting the 24-hour training requirement. At the same time, we believe
this will provide necessary and meaningful training to new miners
within a relatively short period after the worker accrues some work
experience at the mine. We wish to reiterate that there are advantages
to training new miners over a longer period of time. New miners, even
if they have worked a short
[[Page 53113]]
period of time at the mine, will retain training information better
because they will have some practical work experience and will
recognize the relevance of the training material to their work duties.
As in the proposed rule, both the 60-day and 90-day periods
prescribed by the final rule are calendar days and not working days. As
stated in the preamble to the proposal, a deadline measured in working
days would be impractical, particularly given the intermittent and
seasonal work schedules of many operations. A deadline measured in
working days would not only present an administrative burden to you,
both for paperwork and for class scheduling, but would also make
enforcement extremely difficult for us.
To minimize the likelihood that a miner would have to repeat new
miner training unnecessarily, the final rule, like the proposal, allows
training credit to be given where a new miner had not attained
experienced miner status for training purposes but had previously
completed new miner training under part 46 or 48. Under certain
conditions, credit for relevant courses may be given towards the 24-
hour new miner training requirement under Sec. 46.5(a) and towards the
mandatory subject requirements under Sec. 46.5(b) and (c) for that
miner. Although we solicited comment in the proposed preamble on
whether the final rule should allow such crediting and how it should be
addressed, only one commenter specifically responded to our
solicitation and endorsed the proposed approach, without suggesting any
modifications. Accordingly, we have adopted the provisions of proposed
Sec. 46.5(e) and (f) in the final rule, which we have redesignated
paragraphs (f) and (g), respectively.
Under Sec. 46.5(f) of the final rule, a miner who has completed new
miner training under Sec. 46.5 or Sec. 48.25 within the previous 36
months but who does not have the 12 cumulative months of experience for
``experienced miner'' status is not required to repeat new miner
training, with one exception. The operator is still required to provide
this miner with pre-work training on the seven subjects specified in
Sec. 46.5(b) to ensure that the miner has site-specific familiarity
with the mine's operations and practices before work duties commence.
Similarly, final Sec. 46.5(g) permits an operator to credit a new
miner training course completed by a miner under Sec. 48.5 or
Sec. 48.25, provided that the course was completed within a 36-month
period prior to the miner beginning work at the mine and is relevant to
subject areas specified in Sec. 46.5(b) and (c). For example, a new
miner may have completed an hour of instruction at an underground mine
on the statutory rights of miners and their representatives, and an
hour on the use, care, and maintenance of self-rescuers or respiratory
devices within the previous 36-month period. The final rule allows
credit towards the 24-hour new miner training requirement, as well as
toward the mandatory subject requirement, for the one hour spent on the
miners' rights course. The final rule also allows credit for the one
hour spent on the respiratory protective equipment course, but only if
such equipment is used at the mine where the miner is currently
employed.
A few commenters indicated that it was not clear when new miner
training requirements would apply to a miner who is employed by an
independent contractor and moves from mine to mine performing services,
or to a miner employed by a production-operator who works at multiple
mines operated by the same production-operator. Commenters raised this
question because we defined a new miner in the proposal as ``a newly
hired miner who is not an experienced miner'' (emphasis added) but did
not explain what we meant by ``newly hired.'' It was our intent that
new miner status and new miner training requirements would apply when
two conditions were met: first, when the miner does not fit the
definition of ``experienced miner;'' and second, when the miner begins
employment with a new employer. We acknowledge that our use of the term
``newly hired'' in the proposed new miner definition did not expressly
convey the second condition and, as explained elsewhere in this
preamble, we have revised that definition. Under the final rule, the
requirements of Sec. 46.5 are triggered when a miner, who is not an
experienced miner, begins employment with a new employer, not
necessarily when the miner starts work at a different mine. In other
words, the final rule does not require a miner to receive new miner
training each time the miner moves from mine to mine, if the miner
remains continuously employed by the same production-operator or
independent contractor.
Section 46.6 Newly Hired Experienced Miner Training
Section 46.6 of the final rule, like the proposal, addresses
training requirements for ``newly hired experienced miners'' as that
term is now defined in Sec. 46.2. Section 46.6 lists the subject areas
that must be covered in training newly hired experienced miners before
they begin work at the mine and no later than 60 days after they begin
work. Final Sec. 46.6 also contains less rigorous training requirements
for newly hired experienced miners who are returning to the same mine
after an absence of 12 months or less, and allows, under certain
conditions, training credit to be given for practice of assigned tasks.
As in final Sec. 46.5, which addresses new miner training, we have used
a table to set forth the final rule's requirement. This is intended to
make it easier for you to determine the training you must provide to
newly hired experienced miners and when the training must be provided.
We received numerous comments on proposed Sec. 46.6, many of which
addressed issues that were similar to those raised in the context of
new miner training under Sec. 46.5. One commenter raised a general
issue concerning the term ``newly hired experienced miner.'' This
commenter indicated that because the requirements for training under
this section are triggered before and after an experienced miner begins
work, the phrase ``newly hired'' is superfluous and should be deleted.
The commenter also pointed out that recent amendments to part 48
eliminated use of the term ``newly employed'' in Sec. 48.26 for similar
reasons. We agree that it may be somewhat redundant to use the term
``newly hired.'' However, the final rule defines ``newly hired
experienced miner'' in Sec. 46.2 and retains the term in both the
section heading for Sec. 46.6 and the regulatory text. We have taken
this approach to emphasize and make clear that this section applies
only to experienced miners at the time they begin employment with a
production-operator or independent contractor.
Proposed Sec. 46.6(a) would have required you to train newly hired
experienced miners in four subject areas before they begin work but did
not specify a minimum amount of time to be spent on this pre-work
training. One commenter who addressed this aspect of the proposal
supported minimum courses of pre-work instruction as in Sec. 48.26.
Another commenter agreed that the final rule should not specify a
minimum number of hours for training before the miner begins work,
while another commenter recommended that emergency medical procedures
be added to the list of pre-work training requirements. Several
commenters strongly opposed any requirement for pre-work training for
experienced miners, based on the commenters' concerns over the economic
impact of such a requirement on small operations. Several commenters
also maintained
[[Page 53114]]
that such training is not needed for workers who already have mining
knowledge and experience. A few other commenters recommended that the
final rule require only mine-specific hazard awareness training for
experienced miners. Some of these commenters suggested that we should
require only limited training on such subjects as company policies,
safety and environmental response plans, hazard recognition and
avoidance, and ``walkaround'' and task training.
Although section 115 of the Mine Act specifically requires that
miner training regulations address training for new miners, there is no
express statutory directive that we promulgate training regulations for
newly hired experienced miners. However, we have concluded that
experienced miners should receive orientation on the mining environment
in general and be instructed in specific potential hazards at a mine
before they begin work there, and the final rule reflects this
conclusion.
For the same reasons outlined in today's preamble discussion on
final Sec. 46.5(b) for new miners, we are requiring training on seven
subject areas before newly hired experienced miners begin work at a
mine. We believe that all miners beginning employment with a
production-operator or independent contractor, whether experienced or
not, should receive instruction in these critical areas. Unlike final
training requirements for new miners, however, final Sec. 46.6 does not
specify a minimum length of time that must be devoted to pre-work
training for newly hired experienced miners. This conclusion is based
primarily on the fact that experienced miners have far greater
variability in their occupational experience, skills, and knowledge
than untrained workers who are new to mining. The scope and amount of
training needed by a newly hired experienced miner is more dependent on
the occupational experience of the miner, the work duties that the
miner will perform, and the methods of mining and workplace conditions
at your mine. Clearly, if an experienced miner received training on a
subject, such as the statutory rights of miners, within the last year,
you would not need to spend as much time on that subject as you would
for a new miner. Similarly, a newly hired experienced miner would not
require much training on the health and safety aspects of an assigned
task in which the miner has 15 years' prior experience. You are in the
best position to assess the amount of training time needed to ensure
the miner is adequately trained before he or she begins work at your
mine, and the final rule is consistent with this. The final rule allows
you to tailor the newly hired experienced miner training to the
individual miners and concentrate the training on appropriate areas.
For these reasons, it would be impractical and inappropriate for us to
impose a minimum hour requirement for pre-work training for newly hired
experienced miners.
For the same reasons as those stated in the preamble discussion of
final Sec. 46.5(b), the final rule includes instruction on emergency
medical procedures as a required pre-work training subject under final
Sec. 46.6(b)(3). In addition, we have revised the final rule from the
proposal so that the pre-work training subject language in final
Sec. 46.6(b)(1) and (2) for newly hired experienced miners is
consistent with that in final Sec. 46.5(b)(1) and (2) for new miners
(e.g., clarified that the mine tour in paragraph (b)(1) is
``walkaround'' training, and provided examples of potentially hazardous
conditions on which training may be given in paragraph (b)(2)).
The proposal would have required you to provide annual refresher
training to newly hired experienced miners on an accelerated schedule--
within 90 days after they begin their assigned work duties. The
proposal would also have required that the refresher training cover
four specified subjects.
A few commenters supported the proposed requirement that miners
receive annual refresher training within the 90-day period after
employment. One of these commenters stated that MSHA accident and
injury data show that a significant number of deaths and injuries occur
during miners' initial periods of employment. In contrast, a
significant number of commenters objected to the inclusion of annual
refresher training as part of the training requirements for newly hired
experienced miners. Many of these commenters also opposed the 90-day
deadline for the training.
One commenter who opposed the proposed requirements stated that
experienced miners at mines covered by the rule should receive the same
training within the same time periods as part 48 requires for
experienced miners. Generally, Sec. 48.26 requires operators to give
pre-work instruction on specified subjects for all experienced miners,
except miners returning to the same mine following an absence of 12
months or less. Part 48 also requires that experienced miners returning
to mining after an absence of five years or more must receive this pre-
work training in no less than eight hours.
One commenter recommended that the 90-day period in proposed part
46 be increased to 120 days in the final rule to provide a greater
opportunity for operators to train miners during the normal cycle of
refresher training and to credit the eight-hour refresher requirement
with smaller training sessions. However, given the high employee
turnover rate in the mines covered by the final rule, most commenters
maintained that the refresher training requirement would create
significant scheduling problems for small- to medium-sized mine
operators, who would be forced to hold multiple refresher training
sessions. Commenters stated that small operators do not have the
resources to provide an eight-hour annual refresher training course to
each newly hired experienced miner on a schedule that varies from the
normal refresher training cycle. In addition, commenters asserted that
refresher training was not necessary if the miner had received
refresher training at another mine within the previous year or if
miners receive initial pre-work training coupled with task training.
One commenter pointed out that it would not be efficient to require
smaller and more frequent training sessions, which the commenter
believed was the practical effect of the refresher training
requirement. Another commenter noted that the proposed requirement
would necessitate breaking up work crews on a frequent basis and
assigning other workers to fill in for the absent miner being trained.
This commenter believed this would have an adverse impact on safety at
those workplaces.
We have carefully considered the comments submitted on proposed
Sec. 46.6(b) and agree that a requirement for eight hours of refresher
training on an accelerated schedule for newly hired experienced miners
would create unnecessary burdens for many operators, without providing
a clear benefit to the health and safety of miners. For these reasons,
the final rule does not adopt the proposed refresher training
requirement for experienced miners. Instead, final Sec. 46.6(c)
provides that newly hired experienced miners must receive training on
self-rescue and respiratory devices if they are used at the mine. This
is in addition to the pre-work training requirements under final
Sec. 46.6(b), which must also address site-specific hazards at the
mine.
We do not agree with the commenter who recommended that experienced
miner training requirements in part 46 be made identical to Sec. 48.26.
As stated elsewhere in this preamble, the conditions and workforce at
the mines
[[Page 53115]]
covered by part 46, as well as the resources available to small
operations, are different from those at mines covered by part 48. The
final rule requires initial training for these miners before they begin
work, as well as training on additional subjects no later than 60 days
after they begin work. This will ensure that these miners have the
appropriate orientation and instruction before and shortly after they
begin work, to prepare them to work in a safe and healthful manner at
their new places of employment.
As mentioned above, the final rule requires that newly hired
experienced miner training on the specified subjects be completed no
later than 60 days after the miner begins work. The 60-day deadline is
consistent with a similar deadline for completion of the training
subjects for new miners under final Sec. 46.5(c). This responds to some
commenters who were concerned that it was confusing to have different
deadlines for similar training for new miners and experienced miners.
Additionally, under final Sec. 46.4(e), operators may credit short
training sessions towards experienced miner training as long as they
are documented properly.
Some commenters recommended that the final rule include a provision
for newly hired experienced miners similar to the proposed provision
that would allow new miners to practice under the ``close supervision''
of a competent person to satisfy the requirement for training on the
health and safety aspects of an assigned task. According to one
commenter, there is no justification for requiring more of experienced
miners if they can demonstrate through practice, to the satisfaction of
a competent person, that they are familiar with the health and safety
aspects of an assigned task. We agree with this commenter, and
Sec. 46.6(d) of the final rule specifically allows experienced miners
to practice as part of the training on the health and safety aspects of
a task, under the close observation of a competent person. As discussed
in the preamble for final Sec. 46.5(e), the final rule replaces the
term ``close supervision'' with the term ``close observation.''
Final Sec. 46.6(e) is new to the final rule and makes clear that
the scope of training for newly hired experienced miners is not limited
to the subjects listed in Sec. 46.6 (b) and (c). The courses listed in
these paragraphs are only minimum courses of instruction. Operators
should tailor their newly hired experienced miner training program to
their specific mining operations and the needs of the individual
miners.
Final Sec. 46.6(f) adopts language that was proposed in
Sec. 46.6(c). Under this provision, you are not required to provide the
training specified under Sec. 46.6 (b) and (c) if the newly hired
experienced miner returns to your mine after an absence of 12 months or
less. The final rule requires, that, before the miner begins work, a
competent person inform the miner of changes at the mine that occurred
during the miner's absence that could endanger his or her safety or
health. This provision was adopted from recent revisions to Sec. 48.26.
A miner's absence of 12 months or less does not warrant requiring the
miner to repeat experienced miner training at the same mine. Instead,
the final rule treats the returning miner almost as though he or she
never left. Consistent with this approach, the returning miner must
receive any annual refresher training that was missed during his or her
absence, no later than 90 days after the miner starts work. We received
little comment on this aspect of the proposal. However, one commenter
was concerned that miners who returned to a mine after an absence of
more than 12 months would not be informed about changes at the mine
that occurred during his or her absence. Although the final rule does
not specifically require that a miner be informed of such changes, the
final rule does require that any experienced miner returning to the
same mine after an absence greater than 12 months receive newly hired
experienced miner training under Sec. 46.6. We expect that this
training would cover any changes at the mine that would have an impact
on the miner's health or safety.
Proposed Sec. 46.6(d) would have allowed miners who are employees
of independent contractors and who work at the mine on a short-term
basis, such as drillers or blasters, to receive either newly hired
experienced miner training or site-specific hazard training. We
received considerable adverse comment on this aspect of the proposal.
One commenter believed that operators, given the choice, would always
opt to provide contractors with hazard training, not the more extensive
experienced miner training under Sec. 46.6. This commenter was
concerned that contractors would receive little training under part 46.
In fact, under the final rule, independent contractor employees who are
``miners'' must receive comprehensive training, either as ``new
miners'' under Sec. 46.5 or as ``newly hired experienced miners'' under
Sec. 46.6. These workers must also receive appropriate task training
under Sec. 46.7, annual refresher training under Sec. 46.8, and site-
specific hazard awareness training under Sec. 46.11.
Several commenters correctly pointed out that these contractor
employees are not ``newly hired'' because they are still employed by
the same employer, in this case, the independent contractor. Commenters
contended that these miners should receive only site-specific hazard
awareness training for each mine where they work and not be required to
repeat experienced miner training under Sec. 46.6 each time they move
from mine to mine. For the same reason, other commenters requested that
we clarify that miners who move among mines operated by the same
company are not ``newly hired experienced miners'' for training
purposes. Commenters noted that the proposed rule was unclear on
whether the event that triggers newly hired experienced miner training
is the miner beginning work at a new mine or the miner beginning
employment with a new employer.
We agree that it is unnecessary for miners to receive newly hired
experienced miner training whenever they move from one mine to another,
while remaining employed by the same employer, whether production-
operator or independent contractor. In response to these comments, the
final rule includes a definition of the term ``newly hired experienced
miner,'' and provides that experienced miners who move from one mine to
another, such as drillers and blasters, but who remain employed by the
same production-operator or independent contractor are not considered
newly hired experienced miners.
You should be aware that final Sec. 46.11, which addresses site-
specific hazard awareness training, requires you to provide miners who
move from one mine to another mine while remaining employed by the same
production-operator or independent contractor with site-specific hazard
awareness training for each mine.
Section 46.7 New Task Training
Section 115(a)(4) of the Mine Act provides that:
* * * any miner who is reassigned to a new task in which he has
had no previous work experience shall receive training in accordance
with a training plan approved by the Secretary . . . in the safety
and health aspects specific to that task prior to performing that
task.
This section of the final rule implements this statutory provision
by requiring operators to provide miners with training for new tasks
and new health and safety information concerning assigned tasks before
the miners perform the tasks. This section
[[Page 53116]]
generally adopts the proposed provisions, but includes several changes
from the proposal in response to comments.
In developing final Sec. 46.7, we have attempted to address the
comments received and to develop practical requirements for effective
health and safety training programs at the mines covered by this rule.
Although Sec. 46.7 will allow you greater flexibility in the
implementation of new task training to fit your specific mining
operations and workforce, we have determined that the new requirements
will not reduce protection afforded to surface nonmetal miners under
similar standards in existing part 48. While the approach taken under
part 46 may be less structured and more flexible than part 48, the
ultimate result will be the effective health and safety training of
surface nonmetal miners who are assigned new tasks or whose assigned
tasks are modified and the modification has some impact on the health
and safety risks encountered by the miner.
The task training requirements in the final rule are intended to
reduce the likelihood of accidents resulting from a miner's lack of
knowledge about the potential hazards of a task. This section requires
operators to provide miners with important health and safety
information before they perform a new or modified task. This will
ensure that miners are prepared to protect themselves and to avoid
endangering other workers at the mine.
Many commenters supported the task training requirements in the
proposed rule. These commenters stated that employees need to be aware
of the hazards and the risks associated with the jobs or tasks that
they perform and be familiar with the systems, tools, equipment, and
procedures required to control, reduce, or eliminate hazards. Several
commenters noted that proper task training is the key to preventing
injuries and fatalities.
Some commenters recommended that new task training requirements be
patterned after the requirements in part 48. Under part 48, a program
for training on certain enumerated tasks must include instruction, in
an on-the-job environment, in the health and safety aspects and safe
operating procedures of the task; supervised practice during
nonproduction times is also required. Other commenters were supportive
of the performance-oriented requirements in the proposed rule.
The final rule, like the proposal, does not include detailed
requirements for task training. This is intended to allow you to design
task training programs that are suitable for your workforce and your
operation. We expect that effective new task training will include, at
a minimum, instruction in the elements of the task, including hands-on
training, and an explanation of the potential health or safety hazards
associated with the task and ways of minimizing or avoiding exposure to
these hazards.
Many commenters stated that effective task training includes a
combination of different types of training, such as classroom
instruction, demonstration by the competent person, practical hands-on
training, and evaluation of the miner's ability to apply the training
in the workplace. We agree with these commenters, and the flexibility
provided in the final rule is intended to allow each operator to design
and implement an effective task training program that is suitable for
each miner.
Final Sec. 46.7(a) and (b) adopt the requirements of proposed
Sec. 46.7(a). The requirements in these two paragraphs were included in
the proposal in a single paragraph but have been separated into two
paragraphs in the final rule for clarity.
Section 46.7(a) of the final rule requires you to provide any miner
who is reassigned to a new task in which he or she has no previous work
experience with training in the health and safety aspects and safe work
procedures specific to that new task. This training must be provided
before the miner performs the new task. This is adopted with a minor
change from the proposed rule.
The final rule provides that task training must be provided to any
miner who is ``reassigned to a new task.'' The proposal would have
required task training for a miner who was ``assigned'' to a new task.
This terminology is used in the final rule in response to commenters
who indicated they were confused about the relationship between new
task training requirements in this section and new miner training
requirements in proposed Sec. 46.5. This language is intended to
clarify that task training requirements in this section supplement the
new task training-referred to as ``instruction in the health and safety
aspects of assigned tasks''--that miners must receive as part of new
miner training and newly hired experienced miner training under
Secs. 46.5 and 46.6. This change is made in response to several
commenters who pointed out that operators must provide miners with
instruction in ``health and safety aspects of the task'' as part of the
24 hours of new miner training. These commenters questioned what the
distinction was between that aspect of new miner training and task
training under this section. Another commenter observed that the
proposed rule seemed to suggest that new miner training must include
training in the health and safety aspects of all tasks that he or she
will perform in the first year of employment. This commenter emphasized
that task training is an ongoing effort, conducted each time a miner
will perform a task for the first time.
Task training should in fact be an ongoing process, and neither the
proposed rule nor the final rule requires a new miner to receive
instruction, as part of new miner or newly hired experienced miner
training, in every task he or she will perform in the first year. We
agree that the final rule should clarify the relationship between task
instruction for new miners under Sec. 46.5 and for newly hired
experienced miners under Sec. 46.6, and new task training under
Sec. 46.7. Training in the health and safety aspects of tasks for new
miners under Sec. 46.5 and for newly hired experienced miners under
Sec. 46.6 is the same type of training as new task training under this
section. Newly hired miners must receive task training in the tasks
they will perform, either as part of new miner training or newly hired
experienced miner training, as appropriate. After miners have received
this initial training and they are ``reassigned'' to a new task (from
the task that they were initially assigned and for which they already
received task training), final Sec. 46.7(a) requires task training in
that newly assigned task before the miner performs it.
Final Sec. 46.7(b) requires you to provide task training if a
change occurs in a miner's task that affects the health and safety
risks encountered by the miner. This requirement has been adopted with
some change from the proposed rule. The final rule clarifies that a
requirement for task training is triggered by changes that affect the
health and safety risks encountered by the miner, rather than by a
change in the assigned task. This means that task training is required
whenever any change in the task could impact the health and safety
conditions under which the miner works.
Many commenters questioned what type of change in a task would
trigger the requirement for task training. Although it would be
impractical to compile a comprehensive list of such changes, we can
provide a few examples. Task training is intended to ensure that miners
receive new training before they are exposed to new health and safety
hazards, so that they can avoid, control, or eliminate potential
hazards as they perform their job. Such a change could involve a
modification
[[Page 53117]]
to a piece of equipment that introduces new potential safety hazards
for the miner that operates the equipment. For example, the controls on
a loader may be modified, causing the loader to respond more quickly.
The miners who operate this equipment must be informed of the
modifications to the controls and must be given task training that
allows them to become familiar and comfortable with the new controls
before they begin to use the loader for work. Another example would be
a change to a piece of equipment that increases the occupational noise
or dust exposure levels for the miner who operates it. Before the miner
is exposed to the increased noise or dust hazards, the operator must
ensure that the miner is informed of the new health concerns and
receives instruction in how to avoid, control or eliminate the new
health concerns. In any case, if an operator is in doubt as to whether
a change warrants additional task training, the operator should opt in
favor of providing the training.
Final Sec. 46.7(c) provides that you are not required to provide
task training under paragraphs (a) and (b) to miners who have received
training in a similar task or who have previous work experience in the
task, and who can demonstrate the necessary skills to perform the task
in a safe and healthful manner. The final rule, unlike the proposal,
requires you to observe that the miner can perform the task in a safe
and healthful manner to determine whether the miner needs task
training. This is intended to prevent unnecessary or duplicative
training, while ensuring that miners are adequately trained for
unfamiliar tasks. For example, if an equipment operator is already
trained in the health and safety aspects of loader operation, has been
evaluated, and has demonstrated the ability to perform the duties of a
loader operator, there is no reason to require the equipment operator
to repeat task training.
In the preamble to the proposed rule, we indicated that we intended
that task training would not be required for miners who have performed
a task before and who are able to safely perform the task. We noted
that you must first determine that task training is not necessary,
typically by having the miner demonstrate that he or she is able to
perform the task safely. A number of commenters questioned this
statement in the preamble, believing that such a requirement would be
too restrictive. These commenters were of the opinion that a miner's
experience, references, or other information could provide a
satisfactory basis for a conclusion that task training is not required.
These commenters recommended that the final rule clarify that a
demonstration is not required in all cases to determine whether task
training is needed and that the basis of the determination is within
the discretion of the operator.
We do not agree with these commenters. Although a miner may be able
to document prior work experience, this does not ensure that the miner
has retained sufficient expertise in the task to make task training
unnecessary. Under part 48, task training is not required if the miner
has either been trained in the task or has performed the task, and has
demonstrated safe operating procedures for the task within the last 12
months. We agree with this approach, and the final rule reflects our
conclusion that an actual demonstration of a miner's ability to perform
a task safely and healthfully will guarantee that miners who need task
training will receive it. A paper review would not adequately ensure
that the miner has the current ability and knowledge to safely perform
the task. Operators would also be able to evaluate whether training is
needed on elements of the task that may be site-specific. For example,
a miner who is reassigned to operate a particular piece of mobile
equipment may have already operated the same type of equipment at
another mine. However, the terrain of the area where the equipment will
be operated at the current mine may warrant additional task training to
ensure that the miner can safely operate the equipment in the new
terrain. For these reasons, the final rule specifies that a miner must
make such a demonstration before an operator can determine that task
training is not needed. In making this determination, you must observe
the miner performing the task to verify that the miner has the
requisite knowledge and skills to perform the task safely.
The requirements of final Sec. 46.7(d) have been adopted from the
proposal with some changes and provide that practice under the close
observation of a competent person may be used to satisfy task training
requirements if hazard recognition training specific to the task is
given before the miner performs the task. The proposal would have
allowed practice under the ``close supervision'' of a competent person
to be used to fulfill task training requirements. Commenters generally
supported the concept of permitting hands-on practice to fulfill the
requirement for task training. Commenters stated that very effective
and safe training in a new or modified task can include the miner
practicing the task while under the close observation of a competent
person, who instructs the individual in how to perform the task in a
safe manner. However, a number of commenters objected to the
restrictive nature of the requirement that the practice had to be
``under the close supervision of a competent person.'' Some commenters
were concerned that in cases where the competent person was a fellow
miner, the competent person would not have the authority to supervise
or direct the work of the miner receiving the training. These
commenters suggested a term other than ``supervision'' be used to
describe the monitoring of the performance of the task. Other
commenters took issue with the term ``close supervision'' as well as
with the explanation of the requirement in the preamble to the
proposal. These commenters believed that ``close supervision'' was not
practical, because it suggested that the undivided attention of the
person providing the training was necessary. Some commenters
recommended that the person providing the training be the judge of how
closely the miner needs to be supervised, depending on the person's
understanding of the miner's knowledge and experience and of the risks
involved in the task.
The final rule, in response to commenters, allows practice under
the ``close observation of a competent person'' to be used to fulfill
some of the task training required by this section. This allows the
miner to gain experience in the task and to learn how to avoid the
hazards presented by the performance of the task in the surrounding
environment. ``Close observation'' means that the competent person is
in the immediate vicinity of the miner and is watching the actions of
the miner being trained to make sure that the miner is performing the
task in a safe and healthful manner. The nature of the task will
determine the degree of attention that is needed, and the level of
observation should be commensurate with the risks inherent in the task
being performed. The competent person who is observing the miner should
also be assessing the miner's proficiency in performing the task, as
part of the training itself as well as the competent person's
evaluation of whether the training is effective.
The final rule includes the additional requirement that the miner
must be provided with hazard recognition training for the task before
he or she begins to practice the task. This is similar to the provision
for practice for new miners in final Sec. 46.5(e). Without a
requirement for the miner to receive this important information, the
miner would learn by trial and error, an approach that
[[Page 53118]]
relies on mistakes (which can often involve accidents, injuries, and
fatalities) for learning to occur. For example, if you assign a miner
to operate a loader for the first time, you should explain that the
loader can be tipped over much more easily than other vehicles the
miner may have operated. The potential for the loader to tip over could
be explained with the use of photographs, illustrations, or graphs.
This tip-over potential cannot be safely taught through hands-on
training, because it would require the miner to tip over the loader.
The most effective training program will include a combination of
training methods and be flexible enough to apply in different work
environments and for miners with varying levels of education and work
experience. Classroom training is one way that preliminary instruction
can be provided as a prelude to practical hands-on training exercises.
Final Sec. 46.7(e), like the proposal, allows you to credit task
training provided under this section toward new miner training, as
appropriate. Many commenters supported this aspect of the proposal, and
it has been adopted unchanged into the final rule. We envision that
crediting would occur when a new miner's work assignment changes during
the first 90 days of employment. The miner would have received training
in the health and safety aspects of assigned tasks before he or she
begins work under Sec. 46.5(b)(4). If the miner is reassigned to a new
task within the initial 90-day period, training in the new task given
to comply with Sec. 46.7 could be credited toward the 24 hours of new
miner training.
Some commenters recommended that the final rule allow task training
to be credited to newly hired experienced miner training. However, we
have not included a specific provision for this in the final rule.
Because the final rule does not specify a minimum number of hours for
newly hired experienced miner training, there is no need to explicitly
provide for task training to be credited toward newly hired experienced
miner training.
We solicited comment in the preamble to the proposal on whether the
final rule should allow task training to be credited toward annual
refresher training requirements. Although some commenters supported
credit for task training to satisfy annual refresher training, other
commenters strongly opposed it. These commenters stated that miners who
were trained on a number of different tasks during the course of a year
could accumulate enough hours of task training to satisfy the annual
refresher requirement, yet the miner would not have received refresher
training on other hazards and important health and safety concerns.
We agree with those commenters who recommended against allowing
task training to be credited towards annual refresher training. Task
training is designed to ensure that the miner can perform a new or
modified job in a safe manner and may only be relevant to a small
portion of the miner's work at the mine. In contrast, refresher
training is intended to reinforce previous training and enhance the
miner's general knowledge and skills so that he or she can work in a
safe and healthful manner at all times. For these reasons, the final
rule does not allow crediting of task training toward the annual
refresher training requirements.
Finally, one commenter recommended that the final rule specify that
task training must be conducted by a person who is experienced in the
task. The final rule does not adopt this specific recommendation,
because the final rule requires that training must be given by a
``competent person,'' defined as a person with the ability, training,
experience, or knowledge to provide training to miners in his or her
area of expertise. We believe that this definition adequately addresses
the necessary level of expertise, and, for these reasons, the
requirement recommended by the commenter is not needed and has not been
adopted in the final rule.
Section 46.8 Annual Refresher Training
This section of the final rule addresses requirements for refresher
health and safety training for miners. Section 115(a)(3) of the Mine
Act requires all miners to receive at least eight hours of refresher
training no less frequently than once every 12 months. The Act does not
specify the subject areas that must be covered as part of this
training. In the Federal Register notice announcing the public hearings
for the proposed rule, we requested comment on whether the final rule
should require that specific subject areas be covered by refresher
training, and if so, what subjects should be required.
Commenters generally supported the concept of annual refresher
training. Commenters recognized that refresher training provides miners
with an important review of information that helps them to minimize the
health and safety risks at their workplaces. The annual refresher
training requirements in the final rule are intended to reduce the
likelihood of accidents and illnesses by reinforcing previous training
and enhancing miners' ability to work in a safe and healthful manner.
The final rule takes a performance-oriented approach to annual
refresher training to allow operators, particularly small operators, to
direct their training resources to subjects that are relevant to their
workforce and operations. The proposed rule would have required that
you provide each miner with no less than eight hours of refresher
training at least once every 12 months. A few commenters believed that
eight hours of training every year was an excessive requirement for
many small operations and that this requirement appears to assume that
all mining operations are large and complex. Another commenter
recommended that the final rule require refresher training every 24
months, not every 12 months.
The Mine Act is very specific in its requirement that miners
receive no less than eight hours of refresher training at least every
12 months. We therefore have no discretion to adjust or reduce these
minimum requirements.
Several commenters maintained that the language in the proposed
rule suggested that miners must receive all of their refresher training
in one eight-hour session. One commenter stated that eight hours of
refresher training on one day a year, or even over several days within
a short period of time leaves a lot to be desired. This commenter
favored shorter training sessions over a longer period of time. A
number of commenters recommended that the final rule make clear that
miners may receive refresher training in shorter sessions over the 12-
month period.
We agree that providing refresher training in shorter installments
over 12 months is an appropriate way for operators to satisfy refresher
training requirements under the final rule. We did not intend the
language of the proposed rule to leave you with the impression that
such an approach would be unacceptable. We have attempted to clarify
this in the final rule. The final rule does not adopt the language of
the proposed rule that requires refresher training to be completed
``once every 12 months.'' Instead, under final Sec. 46.8(a)(1), you
must provide each miner with no less than eight hours of annual
refresher training no later than 12 months after the miner begins work
at the mine, or no later than March 30, 2001, whichever is later.
Thereafter, final Sec. 46.8(a)(2) requires you to provide each miner
with eight hours of training no later than 12 months after the previous
annual refresher training was completed. Under the final rule, you must
provide miners at your mine with annual refresher
[[Page 53119]]
training no later than 6 months after the rule has gone into effect,
unless the miner is newly employed at the mine. In that case, the miner
has 12 months from the date of employment to complete the first
installment of refresher training.
The deadline of six months after the rule's effective date for
completion of annual refresher training is intended to ensure that
there is no question as to when miners must receive the first
installment of annual refresher training under the final rule. We
considered allowing one year after the effective date for annual
refresher training to be completed, which would be two years after
publication of the final rule in the Federal Register. We determined
that a one-year deadline beyond the effective date would result in a
significant delay in miners receiving this training. We believe that it
is important for those miners who may not have been receiving regular
refresher training to be provided with this training as soon as
practicable. However, we recognize that many operators need time to
prepare for compliance with the final rule. For these reasons, we have
allowed six months beyond the effective date for completion of the
first eight-hour installment of refresher training.
Under the final rule, you may provide annual refresher training in
one eight-hour session once every 12 months. You may also satisfy the
refresher training requirement by providing miners with smaller blocks
of training over the entire year, so long as the total training time
adds up to at least eight hours.
Some commenters stated that the 12-month deadline should begin to
run only after a miner has completed 24 hours of new miner training or
an experienced miner has completed newly hired experienced miner
training. For example, if a new miner begins work on the first of
January 2001 and completes new miner training on March 31, 2001, these
commenters believe that the deadline for the miner to complete eight
hours of annual refresher training should be March 2002 rather than
January 2002. Other commenters pointed out that such an approach would
unnecessarily delay the annual refresher training for a new miner. We
agree with commenters who were concerned about a delay in miners
receiving annual refresher training, and we are not persuaded by
commenters recommending that the 12-month period be extended,
particularly for new miners in their first year at the mine. Timely
refresher training serves to reinforce the initial training received by
new miners, who are more vulnerable to accidents and injuries than
experienced miners. For these reasons, final Sec. 46.8(a)(1) makes
clear that all miners, whether new miners or newly hired experienced
miners, must receive their first eight-hour installment of refresher
training no later than 12 months after they begin work at the mine.
The proposed rule would have required refresher training to cover
instruction on changes at the mine that could adversely affect the
miner's health and safety. Under the proposal, mine operators would
have discretion to select other training topics, although the proposal
did include a list of suggested training topics.
Most commenters believed that the subjects covered in refresher
training should not be mandated, but that operators should instead have
the discretion to select subjects that are relevant to the health and
safety needs of the miners at their particular mining operation.
Several commenters indicated that they believed this flexibility could
only enhance worker safety, not detract from it. Many of these
commenters indicated that training subjects could vary from year to
year, based on such factors as the mine's accident and injury
experience.
Final Sec. 46.8 (b) and (c) generally adopt the requirements of
proposed Sec. 46.8(b). Section 46.8(b) of the final rule requires you
to provide annual refresher training on changes at the mine that affect
the health and safety risks encountered by the miners in performing
their work. Commenters generally supported this requirement in the
proposed rule. However, some commenters were concerned that information
on changes at the mine should be provided to the miners as soon as the
operator becomes aware of the change or before the operator implements
a planned change. These commenters stated that this information should
not be communicated to miners on a 12-month rotation. We agree with
these commenters that operators should convey such information to
miners as soon as possible. However, this information must be
reiterated during refresher training to ensure that miners are
adequately informed of changes in conditions that could affect their
health or safety.
Commenters generally recommended that we provide examples in the
preamble to assist operators in understanding their compliance
responsibilities. Some commenters questioned what type of changes would
fall within the requirements Sec. 46.8(b) and must be addressed as part
of refresher training. One example would be if you plan to change the
traffic patterns at your mine. Other examples include the introduction
of new or retrofitted equipment into the work environment, or a new
blasting schedule.
Final Sec. 46.8(c) clarifies that refresher training must also
address other health and safety subjects that are relevant to mining
operations at the mine. The proposal would simply have provided that
training may include instruction on certain subjects and listed several
examples. The final rule also includes a list of possible subjects,
indicating that training may address these subjects. The language in
the final rule has been amended slightly to clarify that the additional
subjects are recommended but are not mandatory.
In the preamble of the proposed rule, we stated that we expected
that you would carefully select the subjects covered in refresher
training at your mine, to ensure that your miners received practical
and useful instruction that effectively addresses the health and safety
conditions at your operation. We requested comments on whether the
final rule should include more detailed requirements or guidance for
refresher training programs. In addition, we specifically requested
comments on whether the final rule should require instruction on
particular topics, similar to part 48, and if so, which subjects should
be included.
Several commenters stated that, although general guidelines for
possible training subjects were a good idea, the final rule should
allow operators flexibility in choosing subjects. By allowing operators
to identify the subjects to be covered, the relevance of the training
to the work environment will be increased. The commenters stated that
refresher training should cover subject areas relevant to the safety
problems at the mine. One commenter suggested that the subjects listed
in the proposal, which were derived from topics listed in part 48,
should be covered at least once every three years as part of refresher
training. Other commenters stated that the final rule should take the
approach of part 48 and include a list of required courses of
instruction. Several commenters recommended that the final rule list
the courses included in part 48 and indicate that the courses would be
mandatory ``where applicable.'' These commenters stated that the
additional language would allow operators to forgo course subjects that
are not applicable to their operation, giving them more time for other
relevant subjects. Other commenters stated that a review of health and
safety standards should be included in annual refresher training.
[[Page 53120]]
We are persuaded by commenters' recommendations that the final rule
afford operators flexibility in selecting subjects for refresher
training. Refresher training that is tailored to address subjects
relevant to the mine's methods of operation, equipment, accident and
illness history, etc., can be extremely effective. The final rule
reflects this determination and provides a performance-oriented
approach that allows you to implement a refresher training program that
will provide the most health and safety benefits to your miners.
The performance-oriented approach to annual refresher training in
the final rule is designed to allow you to develop and implement the
type of training that will be most beneficial for your miners. We
believe this approach will enable all production-operators and
independent contractors to design and implement an effective annual
refresher training program that maximizes the impact of the required
training for their miners.
The list of recommended subjects contained in final Sec. 46.8(c)
includes subjects that were not included in the proposed rule. The
final rule references subjects that address specific types of equipment
and work activities that have been involved in the most serious
accidents in the mines covered by the final rule. This list is derived
from our analysis of the fatal, disabling, and lost time injury data
from 1991 to 1998 for the mines covered by this rule. For example, the
final rule recommends that refresher training address the hazards of
mobile equipment, such as haulage trucks, service trucks, tractors, and
front-end loaders, because that type of equipment has been involved in
the most number of accidents. Equipment that follows mobile equipment
in the greatest number of accidents includes conveyor systems; cranes;
crushers; excavators; and dredges. We recommend that annual refresher
training address the safe operation of this equipment if you use it at
your mine or, if you are an independent contractor, your employees
operate the equipment or are exposed to its hazards.
The final rule includes other recommended training subjects that we
identified based on our analysis of the injury data, including
maintenance and repair; material handling; fall prevention and
protection; and machine guarding. We intend to continue to analyze the
accident and injury data to identify areas that should be covered as
part of refresher training. In that way, we can develop relevant course
materials that will be useful in the training given under the final
rule.
One commenter stated that it takes at least eight hours to provide
comprehensive first aid training. This commenter advocated a separate
requirement for first aid for all miners and recommended that the eight
hours for annual refresher training be focused on other subjects. We
acknowledge that comprehensive first aid training can require a
significant amount of time, often at least eight hours according to
commenters. However, for purposes of annual refresher training, the
final rule allows you to provide miners with a review of first aid
subjects, rather than extensive comprehensive first aid training.
Further, the requirements of the final rule are minimum requirements,
and the final rule does not prevent you from providing miners with more
than the mandated eight hours of health and safety refresher training
each year. In fact, we encourage you to provide as much training as
possible to miners to enhance their abilities to perform their assigned
duties without endangering themselves or others.
A number of commenters raised the issue of whether the final rule
should impose a minimum duration on refresher training sessions, such
as 15 minutes or half an hour. This issue is also relevant to other
types of training and is discussed in detail in the preamble discussion
of final Sec. 46.4(e).
Several commenters had general questions about the application of
refresher training requirements. One commenter stated that he provides
annual refresher training during a scheduled maintenance shutdown that
occurs each year in April or May. He indicated that he would like to
continue to provide training in this manner, even though miners could
receive annual refresher training 13 months after the previous year's
training. Our interpretation of the requirements of the Mine Act would
not allow such a training schedule. Miners must receive annual
refresher training no later than 12 months after the previous annual
refresher training was completed, as required by final Sec. 46.8(a)(2).
Another commenter stated that truck drivers that come to the mine
to deliver or haul away materials should not be required to receive
eight hours of refresher training every year. This commenter indicated
that the drivers spend 10 minutes loading their trucks at the mine
site, and one to two hours delivering the load, for a total of about
one hour per day spent at the mine site.
Although we are unable to give a definitive answer on this scenario
since we may not have all of the facts, we can provide a general
response. Delivery and customer or haul truck drivers, such as those
described by the commenter, are not included in the definition of a
``miner'' in the final rule. Because the annual refresher training
requirements apply to miners, the drivers described by the commenter
would not be considered miners, and you would not be required to
provide them with eight hours of refresher training. However, you must
provide the drivers with site-specific hazard awareness training under
Sec. 46.11 of the final rule.
Section 46.9 Records of Training
This section of the final rule requires you to record and certify
that miners have received health and safety training under this part.
The final rule adopts many of the proposed provisions, but includes
several changes to address commenters' concerns.
Like the proposal, the final rule requires production-operators and
independent contractors to record and certify the training provided to
miners and to provide miners with a copy of their training certificates
at the completion of the training. Copies of a miner's training records
and certificates must be provided to the miner at the termination of
employment, upon the miner's request. The final rule adopts the
flexible approach of the proposal and does not require that these
records and certificates be maintained on a prescribed form, but allows
operators the option of using alternate forms or methods to MSHA Form
5000-23 for making and keeping these records. The final rule, like the
proposal, also allows you to maintain training records and certificates
away from the mine site, if you have the capability of producing them
upon request. In response to comments, the final rule specifies when
records of training must be made, certified, and provided to miners.
Finally, the record retention period under the final rule has been
changed from the proposal and responds partially to commenters who
recommended that the final rule adopt the record retention requirements
of part 48.
Section 46.9 of the final rule, unlike the proposal, references
both ``training records'' and ``training certificates.'' This
terminology recognizes that there is a distinction between a record and
a certificate. Operators are required to make records of miner training
at specified intervals, but the final rule does not require that
certain records be signed and certified by the person responsible for
training at the mine until some time after the record has been made.
For example, an operator who provides miners with one hour of
[[Page 53121]]
annual refresher training every month must record the training after
each session, but is not required to certify the record until miners
have received the full eight hours of refresher training. A training
``record'' made under final Sec. 46.9(c) becomes a training
``certificate'' after the training has been certified under
Sec. 46.9(b)(5). To make clear that the provisions of final Sec. 46.9
apply to both ``records'' and ``certificates,'' the final rule includes
both terms, where appropriate.
A number of commenters addressed the issue of recordkeeping. Many
commenters supported the flexibility in recordkeeping allowed by the
proposal, stating that recordkeeping requirements beyond those included
in the proposal would be particularly excessive and onerous for small
operators. Other commenters believed that the proposed recordkeeping
requirements were too burdensome for small operators. One commenter
recommended that recordkeeping requirements under the final rule be
flexible and recognize that the offices of many small operators are
their homes, and these operators typically do not maintain their
records electronically.
Final Sec. 46.9(a) requires you to record and certify that each
miner has received training required under this part. Consistent with
the Mine Act requirement that certifications be kept on a form approved
by the Secretary of Labor, the final rule provides that training
records and certificates may be kept on MSHA Form 5000-23, which is the
approved form used by operators under part 48 regulations to certify
that training has been completed. If you choose to use Form 5000-23,
you should be aware that the form was not specifically designed for use
under part 46. For that reason, you should take care to include on that
form all the information required by part 46. However, under the final
rule, as under the proposal, you may also use any other format that
contains the minimum information listed in paragraph (b) of this
section.
Commenters generally supported the proposal allowing operators the
flexibility to choose the appropriate form for their training records.
However, one commenter strongly opposed the use of MSHA Form 5000-23,
stating that the form is confusing and fraught with ambiguity. This
commenter recommended that Form 5000-23 be revised, and until that time
it would not be technically feasible to use the form. Another commenter
recommended revision of Form 5000-23 to make it more appropriate for
the recordkeeping requirements of part 46 and also easier for small
operators to use.
Although we do not agree that Form 5000-23 is so confusing as to be
unusable, the final rule does not mandate the form's use. An operator
may elect not to use that form, and instead may adopt or develop any
other form, so long as the information required by final Sec. 46.9(b)
is included on the form.
The requirements of final Sec. 46.9(a) allow those of you who may
already be using MSHA Form 5000-23 for recording training to continue
to use this form under the final rule. However, the final rule allows
operators, particularly small operators who are less likely to have
formal health and safety programs at their mines, the flexibility to
use other formats that are compatible with the information requirements
specified in paragraph (b). This provision has been adopted unchanged
from the proposed rule. Under this paragraph, a form is approved by us
if it contains the information listed in paragraphs (b)(1) through
(b)(5), including--
(1) The printed full name of the person who received the training;
(2) The type of training that was received, the duration of the
training, the date the training was received, and the name of the
competent person who provided the training; and
(3) The name of the mine or independent contractor, MSHA mine
identification number or independent contractor identification number,
and the location where the training was given.
In response to comments, the final rule requires the ``printed full
name'' of the person who received the training, but does not
specifically require the first, middle, and last name, as the proposal
would have required. One commenter was concerned that many miners used
shortened forms of proper names or other nicknames to identify
themselves and that some people never go by their first names and
middle initials. Another commenter stated that the final rule should
allow the use of the name on a miner's payroll record, even though it
may not be the miner's full given name. These commenters believed that
requiring that training records include all three given names was
unnecessary and could result in confusion. In response, the final rule
does not specifically require that the record include the trainee's
first, middle, and last name. Instead, the miner's ``full name'' must
be included. Our expectation is simply that the name indicated on the
training form allows ready identification of the miner who received the
training.
Final Sec. 46.9(b)(3) requires, where appropriate, the training
record to include the name of the independent contractor and MSHA
independent contractor identification number. This requirement was not
included in the proposal but has been added to the final rule to be
consistent with the fact that independent contractors with employees
who are miners as well as production-operators are responsible for
training for their miner employees.
Section 46.9(b)(4) of the final rule, like the proposal, also
incorporates the provisions of section 115(c) of the Mine Act and
requires that the form include the statement, printed on the form in
bold letters and in a conspicuous manner, that ``false certification is
punishable under section 110(a) and (f) of the Federal Mine Safety and
Health Act.'' Section 110(a) of the Mine Act provides that an operator
who violates a mandatory standard or any other provision of the Act
shall be assessed a civil penalty of up to $55,000. Section 110(f) of
the Act provides that a person who makes a false statement,
representation, or certification in records or other documents filed or
maintained under the Act may be subject to criminal prosecution and
fined up to $10,000 and imprisoned for up to 5 years.
Under Sec. 46.9(b)(5), the form must also include the statement ``I
certify that the above training has been completed,'' signed by the
person designated in the MSHA-approved training plan as responsible for
health and safety training. This has been adopted without change from
the proposal.
In the proposed preamble, we solicited comment on whether miners
should be required to sign their training certificates and whether
other persons besides the person responsible for training at the mine
should be allowed to sign the certificates. In response, one commenter
stated that miners should not be required to sign certificates, but
that operators or the operator's designee should be allowed to make the
certification. Another commenter stated that the operator is ultimately
responsible for providing training and should be responsible for
certifying that training has been received.
The final rule adopts the proposed requirement that the person
designated by the operator as responsible for health and safety
training certify that the training has been received as indicated in
the record. Although the competent person who provides the training
would have the knowledge to certify that the training reflected on the
certificate was
[[Page 53122]]
provided, we agree with commenters who recommended that the operator or
the operator's designee be responsible for training certification. For
these reasons, the final rule provides that the individual who oversees
health and safety training at the mine must verify and certify that
required training has been provided.
The final rule does not require our approval of your recordkeeping
format. Your records must simply include the minimum information listed
in the final rule. This allows operators to tailor their methods of
recordkeeping to their particular operations. We expect that many
operators will use a computer-based recordkeeping system. Others may
choose to keep certifications on MSHA Form 5000-23. Still others whose
records are not computerized may choose to use another paper-based
form.
It should be noted that the information required under the final
rule differs from the information called for on MSHA Form 5000-23. In
some cases, the final rule requires more information than the form, in
some cases, less. The required information will allow us to determine
compliance with the training requirements. The information will also
enable miners and their representatives to determine that necessary
training has been provided for every miner.
We will be available to assist you in determining whether alternate
record formats are suitable for use in complying with the final rule.
We will also provide MSHA Form 5000-23 training certificate forms upon
request, for those of you who choose to use them in complying with part
46. You may also obtain copies of Form 5000-23 from out Internet Home
Page at www.msha.gov.
The requirements of final Sec. 46.9(c)(1) through (5) have been
added to the final rule in response to commenters who questioned when
records and certificates of training must be made. One commenter
observed that the proposed rule did not recognize the difference
between a training record and a certificate of training and that
requiring training certification and distribution of copies of the
certificates for all attendees after a brief safety meeting would
result in an unnecessary recordkeeping burden. This commenter stated
that the time needed to issue the training certificates in such a
situation could easily exceed the amount of time spent providing the
training. Another commenter stated that the final rule should require
operators to issue training certificates to miners only upon completion
of the entire training program, and not each time incremental training
is provided. Still another commenter recommended that the final rule
should allow the maintenance of periodic training records in a form
consistent with how the training records are kept and that
certification should only be required for training programs that have
been completed.
The proposed rule did not clearly indicate when operators must make
records of miner training and when they must provide training
certificates to miners. Some of the comments on the proposed
recordkeeping requirements led us to conclude that the proposal was not
sufficiently clear on the timing of these requirements and that the
final rule must detail the deadlines for both recordkeeping and
certification, so there is no question as to when operators must take
these actions. The final rule's recordkeeping requirements are also
designed to allow us to verify that training has been received by
miners by the appropriate deadline. Although these provisions are
relatively extensive, we believe that this level of detail is needed to
avoid confusion and assist operators in complying with their training
responsibilities.
Final Sec. 46.9(c)(1) clarifies when operators must make a record
of new miner training under the final rule. A record of new miner
training must be made under Sec. 46.9(b) no later than--
(1) When the miner begins work at the mine;
(2) 60 days after the miner begins work at the mine; and
(3) 90 days after the miner begins work at the mine, if applicable.
This means that you must make a record of new miner training that
includes the information required in paragraphs (b)(1) through (b)(4)
no later than these specified intervals. This will allow us to verify
that a new miner has received required training before he or she begins
work and also that training in all required subjects has been received
by the 60-day deadline. Additionally, operators who provide training to
new miners in other subjects to make up the 24 hours of required
training must document this training no later than 90 days after the
miner begins work. For example, if an MSHA inspector wants to verify
that a new miner working at a mine has received all required pre-work
training, the inspector will inspect the records required for new miner
training under paragraph (c)(1)(i). However, the final rule does not
require operators to certify these records and provide them to miners
until a miner has completed new miner training. Specifically, final
Sec. 46.9(d)(1) requires operators to certify new miner training
records when the full 24 hours of training has been completed and also
to provide miners with copies of their certificates at that time.
The final rule takes a similar approach in Sec. 46.9(c)(2) for
records of newly hired experienced miner training under Sec. 46.6 and
requires operators to make records of training no later than--
(1) When the miner begins work at the mine; and
(2) 60 days after the miner begins work at the mine.
Final Sec. 46.9(d) requires newly hired experienced miner records
to be certified and provided to miners after the miners have completed
all of the newly hired experienced miner training. This is similar to
the requirement for certification of new miner training.
Final Sec. 46.9(c)(3) requires operators to record new task
training upon completion of the training, and final Sec. 46.9(c)(4)
requires operators to make a record of annual refresher training upon
completion of each training session. Consistent with the other types of
training already discussed, records of annual refresher training are
not required to be certified and provided to miners until the miner has
received all eight hours of annual refresher training. For example, if
an operator satisfies refresher training requirements for miners by
providing a one-hour health and safety talk once a month, the operator
must document each one-hour session upon its completion under
Sec. 46.9(c)(4). However, operators are not required to ensure that
these records are certified and copies provided to miners under
Sec. 46.9(d) until after miners have received the full eight hours of
training.
Final Sec. 46.9(c)(5) provides that a record must be made upon
completion of site-specific hazard awareness training provided to
miners under Sec. 46.11. This clarifies the intent of the proposal,
reflected in the preamble, that records of site-specific hazard
awareness training would be required only for ``miners,'' not for those
persons at the mine site who do not fall within this definition.
Because it was obvious that this distinction was not clear to many
commenters, we have included this provision in the final rule.
Additionally, final Sec. 46.9(i) further clarifies this issue, which
the preamble addresses in greater detail below. You must make a record
of training under paragraphs (c)(1) through (c)(5) as prescribed in the
following table:
[[Page 53123]]
Recordkeeping Deadlines for Training Provisions
------------------------------------------------------------------------
Type of training When the record of training must be made
------------------------------------------------------------------------
New miner training........... No later than when the miner begins to
perform work at the mine; 60 calendar
days after the miner begins work at the
mine, if applicable; and 90 calendar
days after the miner begins work at the
mine, if applicable.
Newly-hired experienced miner No later than when the miner begins to
training. perform work at the mine; and 60
calendar days after the miner begins
work at the mine, if applicable.
New task training............ Upon completion of new task training.
Annual refresher training.... After each session of annual refresher
training.
Site-specific hazard Upon completion by miners of site-
awareness training. specific hazard awareness training.
------------------------------------------------------------------------
Final Sec. 46.9(d)(1) through (d)(5), as already discussed, require
operators to ensure that all records of training under paragraphs
(c)(1) through (c)(5) have been certified under paragraph (b)(5) and a
copy provided to the miner at the completion of the training.
Paragraphs (d)(1) through (d)(5) clarify when the different categories
of training are considered completed under the final rule and must be
certified. These provisions are consistent with Sec. 115(c) of the Mine
Act, which requires that operators give miners copies of their training
certificates at the completion of each training program. The final rule
specifies that certification and distribution of certificates to miners
is required--
(1) Upon completion of the 24 hours of new miner training;
(2) Upon completion of newly hired experienced miner training;
(3) At least once every 12 months for new task training, or upon
the miner's request, if applicable;
(4) Upon completion of 8 hours of annual refresher training; and
(5) Upon completion of site-specific hazard awareness training
provided to miners.
The 12-month certification requirement for task training has been
adopted into the final rule from our policy in this area under part 48.
Under that policy, operators may provide miners with copies of their
task training certificates at 12-month intervals. This is intended to
reduce unnecessary paperwork. However, in the event that a miner wishes
a copy of the certificate of the task training that he or she has
received before the 12-month period has elapsed, the final rule
provides that operators must provide a miner with a copy of the task
training certificate upon request. You must certify records of training
under paragraphs (d)(1) through (d)(5) and provide a copy to the miner
as prescribed in the following table:
Certification of Records and Copy to Miners
------------------------------------------------------------------------
Record must be certified and copy
Type of training provided to miner--
------------------------------------------------------------------------
New miner training........... Upon completion of the 24 hours of new
miner training.
Newly hired experienced miner Upon completion of newly hired
training. experienced miner training.
New task training............ At least once every 12 months or upon
request by the miner.
Annual refresher training.... Upon completion of the 8 hours of annual
refresher training.
Site-specific hazard Upon completion by miners of site
awareness training. specific hazard awareness training.
------------------------------------------------------------------------
Final Sec. 46.9(e), like the proposal, adopts the statutory
provision that false certification that training was completed is
punishable under section 110(a) and (f) of the Mine Act. This aspect of
the proposal received no comment and has been adopted without change
into the final rule.
Several commenters were opposed to requiring operators to provide
copies of training certificates to miners automatically upon completion
of a training program, stating that it would impose an unnecessary,
impractical, and burdensome paperwork requirement. These commenters
strongly recommended that the final rule require training certificates
to be provided to miners only ``upon request,'' similar to the approach
taken in the proposal for miners who leave an operator's employ. Other
commenters specifically questioned the need for this requirement for
records of task training, stating that to require a certificate to be
prepared and provided each time task training is given would be
administratively difficult and would result in a proliferation of
certificates that would not be helpful to employees. These commenters
recommended that operators be permitted to maintain records of task
training without having to provide copies of the certified records to
miners.
The final rule does not adopt these recommendations. The Mine Act
clearly requires operators to provide miners with copies of their
training certificates upon completion of the training, and the
requirements of the final rule are consistent with this statutory
requirement. Additionally, the final rule clarifies that operators must
provide miners with copies of their certificates only after all
training of a particular type has been completed. This minimizes the
recordkeeping and paperwork burden on operators, while fulfilling the
statutory mandate.
Under final Sec. 46.9(f), as under the proposed rule, you must give
a miner a copy of his or her training records and certificates when the
miner leaves your employ, upon the miner's request. This adopts the
provision in Sec. 115(c) of the Mine Act that miners are ``entitled''
to a copy of their certificates when they terminate their employment
with an operator. We interpret the statutory language to mean that a
miner must be provided a copy if he or she requests it, but that you do
not have to provide copies to miners who do not make such a request.
Those commenters who addressed this aspect of the proposal supported
this interpretation, and this provision is adopted from the proposal
unchanged.
As we indicated in the proposal, we anticipate that miners who are
leaving for another job in the mining industry or who intend to return
to the mining industry at some point in the future will request copies
of their training records. This will enable miners to document their
training status under part 46 at other mining operations. However, we
also anticipate that some miners will
[[Page 53124]]
terminate their employment because they are retiring or otherwise have
no expectation of returning to mining, and for these reasons the final
rule does not require that you provide these records to the miner
automatically.
Final Sec. 46.9(g), like the proposal, requires you to make
available at the mine site a copy of each miner's training records and
certificates for inspection by us and for examination by miners and
their representatives. Under this paragraph, you must also have the
capability to produce the records and certificates upon request by us,
miners, or their representatives, if you do not maintain these records
at the mine site.
Commenters generally supported the flexibility that the proposal
would give operators to maintain training records at a location other
than the mine site. One commenter contended that it would be highly
impractical for many small operators to maintain training records at
the mine site, because many mines have no offices or other places to
maintain records. Another commenter indicated that some aggregate
operations are so small that there are no office facilities, computers,
fax machines, or even conventional telephones. This commenter
recommended that the final rule allow the retention of training records
where the operation's other business records are maintained. If the
records were requested by us for examination or by miners or their
representative, the commenter suggested that the operator could fax or
e-mail them to the person who made the request. However, one commenter
expressed concern about allowing training certificates to be maintained
away from the mine site, because it could delay MSHA inspectors from
identifying untrained miners, who could continue to be exposed to
hazards while attempts are made to produce the miners' training
records.
Although the proposed rule would have allowed training certificates
to be kept at a location away from the mine site, the proposal did not
specify a time within which copies of the certificates must be produced
after a request by us or by miners. We indicated in the preamble to the
proposal that we expected that operators would be able to produce
copies of training certificates within a reasonable time, which in most
cases would be a relatively short period of time. We solicited comment
on whether commenters supported imposing a deadline for operators to
produce training certificates that are maintained away from the mine
site. Many commenters who addressed this issue recommended that the
final rule establish a deadline of one business day after the request
for these certificates to be produced.
Section 115(c) of the Mine Act provides that miner training records
be ``maintained by the operator'' and ``available for inspection at the
mine site.'' The clear purpose of section 115 is to ensure that
training records can be inspected by us and examined by miners and
their representatives to determine whether miners have received
required training at a specific operation.
The use of electronic information accessed by computers is an
increasingly common business practice in general industry as well as in
the mining industry. This type of technology can provide almost
instantaneous communication and transfer of documents, even to remote
locations. Electronic recordkeeping is typically more efficient and
access to electronic records is often much faster than with traditional
paper-based recordkeeping. As a result, we have concluded that if an
operator's training records can be quickly accessed at the mine site by
e-mail or fax machine, those records are ``available at the mine site''
for purposes of section 115(c) of the Mine Act. Allowing operators to
maintain miner training records at a central location will promote the
Mine Act's intent of flexibility in minimizing the paperwork burden and
will further the objectives of the Paperwork Reduction Act of 1995.
However, we have determined that allowing a specific deadline, such
as one business day, for operators to produce training records and
certificates could unduly delay us in verifying that miners have
received required training. Under section 104(g)(1) of the Mine Act,
miners who have not received training required under section 115 must
be immediately withdrawn from the mine. For those reasons, the final
rule does not allow operators a specific period of time in which to
produce training records and certificates. Instead, our expectation is
that operators will produce these documents upon request. However, if
an operator does not have the ability at the mine site to quickly
access records and certificates maintained elsewhere, the operator must
maintain the records and certificates at the mine site so that they can
be produced in a short period of time for inspection and examination.
We do not believe that this requirement places an unreasonable
burden on those operations where electronic access to records is not
feasible. These are typically small operations with few employees and,
as a result, a limited number of training records and certificates.
Because of the small number of records, recordkeeping at the mine site
is less problematic.
Final Sec. 46.9(h) requires you to maintain copies of training
records and certificates for each currently employed miner during his
or her employment, except records and certificates of annual refresher
training under Sec. 46.8, which you must maintain for two years. You
must also maintain copies of training certificates and training records
for at least 60 days after a miner terminates employment.
Under the proposal, operators would have been required to maintain
all of a miner's training records as long as the miner continued to be
employed by the operator and for one year after the miner terminated
his or her employment with that operator. A number of commenters
questioned why the proposal would require such a long retention period
for training records of currently employed miners. Commenters believed
that this was quite burdensome in comparison to the two-year retention
period of part 48 for currently employed miners and recommended that
the part 48 retention periods be adopted in the part 46 final rule.
Another commenter recommended that the final rule require that training
records be kept a minimum of 12 months, regardless of whether the miner
is still employed by the operator.
We acknowledge that the retention period for records of currently
employed miners in the proposed rule could result in a significant
recordkeeping burden for miners who remain employed with the same
operator over a period of many years. However, we use these records to
verify that miners have received required training. It makes sense to
require retention of records of new miner training, newly hired
experienced miner training, and task training as long as the miner
remains employed with the operator, not just for two years. This will
allow us to determine that miners have received the necessary initial
training and training in new or modified tasks, even several years
after the training has been given. On the other hand, retention of
records of annual refresher training would not be necessary for more
than two years, which is the retention period under part 48. Typically,
examination of records over the last 24 months will provide us with a
sufficient basis to verify that an operator has complied with refresher
training requirements. For these reasons, the final rule does not
require you to retain refresher training records and certificates
longer than two years.
In response to comments, the final rule requires operators to
maintain training records and certificates for at
[[Page 53125]]
least 60 days after the miner terminates his or her employment. This is
consistent with existing part 48 requirements. As stated above, the
proposal would have required operators to keep these records for one
year after miners terminate their employment. We are persuaded by those
commenters who advocated a 60-day retention period, which allows us to
verify that required training has been given to all miners, including
miners who recently terminated their employment, while minimizing the
recordkeeping burden placed on operators.
Finally, one other commenter recommended that training records for
miners be retained for at least 36 months after they terminate their
employment with the operator, to be consistent with Sec. 46.5, which
allows new miner training courses to be credited towards the final
rule's new miner training requirements for up to 36 months after the
miner takes the courses. This commenter believed that a 36-month
retention period would make it easier for miners to take advantage of
this provision. Although this commenter makes a reasonable point, we do
not believe it is necessary to impose a 36-month record retention
period to address this situation. Instead of requiring a longer
retention period in the final rule, we encourage miners to retain
copies of their training records and certificates from previous
employment. A miner who is terminating his or her employment with an
operator and who wants evidence of prior training may obtain copies of
his or her training records and certificates. The miner will then be
able to document his or her prior training at the new mine.
Paragraph (i) has been added to final Sec. 46.9 in response to
comments that reflected commenters' confusion about the recordkeeping
requirements for site-specific hazard awareness training. This
provision states that you are not required to make a record of site-
specific hazard awareness training under Sec. 46.11 for persons who are
not miners under Sec. 46.2. However, you must be able to provide
evidence to us, upon request, that the training was provided, such as
by producing the training materials that are used, the written
information distributed to persons upon their arrival at the mine, or a
visitor log book that reflects that site-specific hazard awareness
training has been given. Many operators already maintain log books
where they track visitors to the mine and make entries in the book that
indicate that visitors have received appropriate site-specific
training. This would be an effective and acceptable method of
demonstrating compliance with the requirements for site-specific hazard
awareness training under the final rule.
Section 46.10 Compensation for Training
This section of the final rule addresses when training under this
part must be conducted and how miners must be compensated when they
receive training. This section, like the proposal, adopts the
provisions of section 115 of the Mine Act that address compensation for
miners who receive required training.
Section 115(b) of the Mine Act provides that health and safety
training shall be provided during normal working hours and that miners
shall be paid at their normal rate of compensation when they take such
training. Section 115(b) also requires that if training is given at a
location other than the normal place of work, miners shall be
compensated for the additional costs incurred in attending such
training.
Paragraph (a) of final Sec. 46.10 incorporates this statutory
requirement and provides that health and safety training must be
conducted during normal working hours. As discussed earlier in this
preamble, the part 48 definition of ``normal working hours'' has been
included in the final rule in Sec. 46.2 and provides that normal
working hours means ``. . . a period of time during which a miner is
otherwise scheduled to work.'' The definition also indicates that
training may be conducted on the sixth or seventh working day provided
that such work schedules have been established for a period of time to
be accepted as the common practice. As discussed under the preamble for
Sec. 46.2, we intend that the schedule must have been in place long
enough to provide reasonable assurance that the schedule change was not
motivated by the desire to train miners on what had traditionally been
a non-work day.
Final Sec. 46.10(a), like the proposal, also provides that persons
attending such training must be paid at a rate of pay that corresponds
to the rate of pay they would have received had they been performing
their normal work tasks. This provision has been adopted from part 48,
received little comment, and has been adopted unchanged from the
proposal.
Final Sec. 46.10(b) requires that miners be compensated for the
additional costs, such as mileage, meals, and lodging they may incur in
attending training sessions at a location other than the normal place
of work. Although we anticipate that much of the training provided
under this part will be given at or near miners' normal workplaces, in
those cases where miners must travel to receive required training, they
are to be fully compensated for their expenses of travel.
Although commenters generally supported the proposed training
compensation requirements, they requested clarification on a few
issues. One commenter noted that training provided to miners after a
long work day or on what would ordinarily be a day off would not be
very effective. This commenter's concern reflects the rationale for the
statutory requirement that training be conducted during normal working
hours. Training provided to miners when they are tired after working an
entire shift typically will be less effective than training provided
when they are rested and alert.
Several commenters questioned whether travel time to training at
locations away from the mine must occur during normal working hours.
These commenters indicated that they may need to schedule miners to
work longer than their normal shifts on days that the miners receive
training. For example, if a miner's normal work shift is eight hours,
would the final rule prohibit the miner traveling an hour each way to
attend an eight-hour training session, for a total of ten hours?
We do not interpret the statute to mandate such a restrictive
result. Under our interpretation, the final rule would not prohibit
travel to an off-site training location outside of normal working
hours, so long as the actual training occurs during normal working
hours. However, a miner is entitled to compensation for travel to off-
site training. As a practical matter, we expect that little, if any,
off-site training will require extensive travel.
One commenter questioned whether mileage costs must be provided to
miners who attend training at a site that is immediately adjacent to
the mine site. This commenter stated that because the training location
did not qualify as the normal place of work, a strict interpretation of
this aspect of the proposal would require the miners to be compensated
for mileage costs.
We agree that the statute and this aspect of the final rule can be
interpreted in such a way as to produce unreasonable results. However,
our intention is to interpret and enforce the final rule in a
reasonable manner. In the case described by the commenter, we expect
that the costs incurred by miners in traveling to a training location
in the vicinity of the normal place of work would be the same as their
ordinary
[[Page 53126]]
costs of getting to work. Because the statute requires that miners be
compensated for additional costs of attending off-site training, we
would not require reimbursement for travel costs in such a case.
However, miners must be reimbursed for mileage costs in the more
typical case where miners must drive a number of miles beyond their
normal place of work to an off-site training location.
Finally, a few commenters noted that certain types of training may
not be available during normal working hours. For example, miners who
wish to take training from the Red Cross may need to take it at night.
Although we are sympathetic to these commenters' concerns, the Mine Act
specifically prohibits such a practice for training that is provided to
satisfy part 46 requirements. We have no discretion to allow training
to be provided outside of normal working hours if it is used to satisfy
training requirements under this part. As a result, while we do not
discourage the participation of miners in relevant safety and health
training, such training must be conducted during normal working hours
in order for it to be credited toward the minimum requirements of part
46.
Section 46.11 Site-Specific Hazard Awareness Training
This section of the final rule generally adopts the proposed
provisions for site-specific hazard awareness training, but includes
several changes from the proposal in response to comments. Under the
final rule, like the proposal, persons who do not fall within the
definition of ``miner'' under Sec. 46.2 are required to receive site-
specific hazard awareness training. The final rule also adopts, with
some change, the proposed requirement that employees of independent
contractors who are ``miners'' must also receive site-specific hazard
awareness training at the mines where they work. Site-specific hazard
awareness training must be given under the final rule before persons
are exposed to mine hazards.
Several commenters stated that the title of proposed Sec. 46.11
should be changed to more accurately describe the type of training that
is required by the section. Commenters observed that the training under
this section is intended to make persons aware of site-specific hazards
before they enter the mine site and are exposed to these hazards. These
commenters believed that the meaning of the term ``hazard training''
was unclear and could be confused with task training. We agree with
these commenters, and the title of this section has been change to
``Site-Specific Hazard Awareness Training'' to more precisely identify
the type of training that is required by this section of the final
rule.
Commenters generally supported the concept of providing site-
specific hazard awareness training to persons before they are exposed
to mine hazards. Several commenters observed that the type of people
who come to the mine site and the degree of their exposure to hazards
varies tremendously. These commenters stated that the extent of hazard
awareness training required by the final rule should vary greatly as
well. Several commenters indicated that the type, duration, and
delivery of this training should be commensurate with the hazards to
which persons at the mine site are exposed.
Paragraph (a) of the final rule adopts the requirements of proposed
Sec. 46.11(c) and requires you to provide site-specific hazard
awareness training before the affected person is exposed to mine
hazards. We believe there is no reason to allow any delay in providing
hazard awareness training. In fact, allowing persons to be exposed to
mine hazards before they receive hazard awareness training would defeat
the purpose of the training. We expect that hazard awareness training
will not be overly burdensome and can be effectively provided to
affected persons before they enter the mine site. We have moved this
provision to the first paragraph of this section in the final rule to
emphasize that site-specific hazard awareness training must be provided
before the affected person is exposed to mine hazards.
A number of commenters questioned whether operators must provide
hazard awareness training to persons who are on mine property but who
are not exposed to mine hazards. One commenter used as examples soft
drink delivery personnel or other visitors who go no further than the
office to perform their work. These commenters recommended that the
final rule clarify that hazard awareness training is not required for
individuals who come onto mine property but who do not travel or
perform work in the portion of the property upon which extraction or
production is conducted. Some of these commenters also recommended that
the final rule clarify what constitutes a ``mine site'' as that term is
used in Sec. 46.11.
As discussed in the preamble for final Sec. 46.2, the final rule
defines ``mine site'' as an area of the mine where mining operations
occur. The final rule also defines ``mining operations'' to include
activities such as mine development, drilling, blasting; maintenance
and repair of mining equipment; and associated haulage of materials
within the mine. For example, the mine site would include areas where
mining operations take place, such as the pit, quarry, stockpiles, mine
haul roads, or areas where customers travel or haul material. These
definitions are intended to make clear that hazard awareness training
is required for persons who are in the area of the mine property where
mining-related activity takes place. Persons who are on mine property
but who are never in the area of the property where mining operations
occur are not required to receive hazard awareness training. For
example, we do not intend that hazard awareness training be required
for office or staff personnel whose offices are located some distance
from the mine site and whose duties never require their presence at the
mine site. However, office or staff personnel who travel occasionally
about the mine site must receive hazard awareness training, unless they
are accompanied by an experienced miner under final Sec. 46.11(f).
Final Sec. 46.11(b) requires that you provide site-specific hazard
awareness training to any person who is not a miner as defined in
Sec. 46.2 but who is present at a mine site. This section also includes
examples of such persons. Paragraphs (b)(1) through (b)(7) include
examples of persons who are required to receive hazard awareness
training, and the provisions of these paragraphs have been adopted with
minor changes from the proposal. These persons include office or staff
personnel; scientific workers; delivery workers; customers, including
commercial over-the-road truck drivers; construction workers or
employees of independent contractors who are not miners under
Sec. 46.2; maintenance or service workers who do not work at a mine
site for frequent or extended periods; and vendors or visitors. This
mirrors the list included in final Sec. 46.2(g)(2) of persons who do
not fall within the definition of ``miner'' and is discussed in greater
detail in the preamble for that section. This list is intended to
assist operators in determining the types of persons who must receive
hazard awareness training, but is not meant to be all-inclusive.
The final rule requires hazard awareness training for vendors and
visitors who are present at a mine site. Some commenters stated that
these individuals are not usually exposed to mine hazards, and
therefore they should not have to receive hazard awareness training.
However, other commenters stated that this training should be
[[Page 53127]]
provided to visitors and vendors before they are exposed to mine
hazards. We agree with commenters who believe that a vendor or visitor
who will be in the vicinity of mine hazards, even for a limited period
of time, should receive hazard awareness training.
We have added the provisions of Sec. 46.11(b)(5) to the final rule
to make clear that you must provide site-specific hazard awareness
training to construction workers and employees of independent
contractors who are not miners. This was the intent under the proposal,
but language to that effect has been included in the final rule to
ensure that there is no uncertainty about the requirements of final
Sec. 46.11. As discussed earlier, we stated in the preamble to the
proposal that construction workers would be covered by part 46.
However, the proposed rule itself made no specific mention of
construction workers. We have addressed that omission in the final
rule.
The provisions of final Sec. 46.11(c) have been adopted with some
change from proposed Sec. 46.6(d) and take the place of provisions
proposed under Sec. 46.11(b). Under final Sec. 46.11(c), you are
required to provide miners, such as drillers or blasters, who move from
one mine to another mine while remaining employed by the same
production-operator or independent contractor with site-specific hazard
awareness training for each mine. The provision of the final rule
covers miners employed by both the independent contractor and the
production-operator. The proposal would have required you to provide
hazard training to each person who is an employee of an independent
contractor and who is working at the mine as a miner, unless the miner
has received newly hired experienced miner training at the mine.
However, as explained in the preamble discussion of Sec. 46.6 and in
response to comments, we have concluded that miners who move from mine
to mine are not ``newly hired'' when the begin work at a new mine if
they remain employed by the same employers, whether production-
operators or independent contractors. As a result, the final rule does
not adopt the proposed option of newly hired experienced miner training
for these miners.
Commenters generally supported a requirement for site-specific
hazard awareness training for miners if they move from mine site to
mine site. Contract drilling and blasting personnel are only two
examples of these types of miners. Although these employees must
receive comprehensive training because they are ``miners'' under the
final rule, they must also receive site-specific hazard awareness
training at each new mine before they begin work at the mine. As a
practical matter, we expect that many, if not most, independent
contractor employees will receive hazard awareness training under final
Sec. 46.11(b) because they do not meet the definition of ``miner''
under Sec. 46.2. However, employees of independent contractors who do
fall within the definition of ``miner'' also need effective orientation
to their new work environments before they begin their job duties. This
is consistent with the observations of commenters who stated that some
miners move from mine to mine while remaining employed by the same
production-operator and that these miners need to receive site-specific
hazard awareness training as a minimum before they begin to work at
each new mine. We agree with these commenters and Sec. 46.11(c)
specifically requires these miners to receive this training, whether
employed by production-operators or independent contractors. This
requirement recognizes that miners may encounter new or unfamiliar
site-specific hazards as they travel from mine to mine.
Final Sec. 46.11(d) has been adopted from the definition of
``hazard training'' that was included in proposed Sec. 46.2. Commenters
recommended that we move the definition of ``hazard training'' from
Sec. 46.2 to Sec. 46.11, because Sec. 46.11 specifically addresses
hazard awareness training requirements. Commenters believed that this
would make it easier for the mining community to understand the
requirements of Sec. 46.11. We agree with commenters that consolidation
of this language in one place is more straightforward, and we have
incorporated the language from the definition in proposed Sec. 46.2
into Sec. 46.11 of the final rule. Site-specific hazard awareness
training is defined in this paragraph as information or instructions on
the hazards a person may be exposed to while on mine property, as well
as on applicable emergency procedures. Paragraph (d) further provides
that the training must address site-specific health and safety risks,
such as unique geologic or environmental conditions, recognition and
avoidance of hazards such as electrical and powered-haulage hazards,
traffic patterns and control, restricted areas, warning and evacuation
signals, evacuation and emergency procedures, or other special safety
procedures. The proposal would have provided that the hazards may
include site-specific risks and included a similar list.
The final rule makes it mandatory that hazard awareness training
cover site-specific risks. This is in response to commenters who
pointed out that the purpose of the training is to ensure that persons
who are unfamiliar with the mine and with the hazards of a particular
operation have been provided with enough information to avoid exposure
to hazards while they are at the mine. We recommend that you review the
examples of hazards set forth in the final rule and ensure that the
site-specific hazard awareness training addresses, at a minimum, all of
the risks that are applicable at your mine.
Under final Sec. 46.11(e), like proposed Sec. 46.11(d), you may
provide site-specific hazard awareness training through the use of
written hazard warnings, oral instruction, signs and posted warnings,
walkaround training, or other appropriate means that alert affected
persons to site-specific hazards at the mine.
Commenters had varying opinions on how long hazard awareness
training should last and what form it should take. Some commenters were
concerned that the proposed rule allowed too much flexibility in how
the site-specific hazard awareness information would be presented to
affected persons. These commenters observed that, in some cases,
operators could comply with the requirement for site-specific training
exclusively through the use of warning signs, and that such training
would be insufficient to protect persons who are unfamiliar with mining
operations from the hazards that they may be exposed to at the mine.
One commenter recommended that hazard awareness training include some
form of personal instruction or interaction, such as walkaround
training. Other commenters stated that the final rule should allow
operators the flexibility to tailor their hazard awareness training to
the specific conditions at their mine.
The final rule, like the proposal, affords operators the discretion
to tailor site-specific hazard awareness training to the unique
operations and conditions at their mines. However, the training must in
all cases be sufficient to alert affected persons to site-specific
hazards. Depending on the circumstances and the type and degree of the
person's exposure to mine hazards, you may provide hazard awareness
training through informal but informative conversations. In other
cases, you may choose to provide some form of walkaround training by
guiding the trainee around the mine site, pointing out particular
hazards or indicating those areas that the person should avoid, or by
some combination of these methods.
[[Page 53128]]
We also intend that hazard awareness training be appropriate for
the individual who is receiving it and that the breadth and depth of
training vary depending on the skills, background, and job duties of
the recipient. For example, it may be appropriate for you to provide
hazard awareness training to customer truck drivers by handing out a
card to the drivers alerting them to the mine hazards or directing them
away from certain areas of the mine site. More extensive hazard
awareness training might be needed for an equipment manufacturer's
representative who comes onto mine property to service or inspect a
piece of mining equipment. Although this individual may not be on mine
property for an extended period, the person's exposure to mine hazards
may warrant more training. Appropriate hazard awareness training would
typically be more comprehensive for contractor employees who fit the
definition of ``miner'' because they are engaged in mining operations.
These employees receive comprehensive training but also need
orientation to the mine site and information on the mining operations
and mine hazards.
The final rule allows you the flexibility to tailor your hazard
awareness training to the specific conditions and practices at your
mine. However, in most cases, an effective site-specific hazard
awareness training program will include a combination of the different
types of training listed in this paragraph. For example, you may want
to provide oral instructions on the site-specific hazards and give the
affected person the opportunity to ask questions about the mine in
addition to the use of written handout materials and/or signs and
posted warnings. The flexibility provided in the final rule is intended
to allow operators to design and implement effective site-specific
hazard awareness training programs that are suitable for their mine
sites and the persons affected.
Under final Sec. 46.11(f), like proposed Sec. 46.11(e), you are not
required to provide site-specific hazard awareness training to any
person who is accompanied at all times by an experienced miner who is
familiar with the hazards specific to the mine site. The experienced
miner is not a ``competent person'' as defined in Sec. 46.2, but the
miner must be sufficiently familiar with the mine's operations and its
hazards to ensure that the person the miner accompanies is protected
from danger while at the mine site. This provision gives you the option
of foregoing site-specific hazard awareness training, most likely for
one-time visitors. We expect that, in many situations, it may be more
expedient for the person to be accompanied, such as a visitor who is
being taken on a mine tour.
Several commenters supported this provision and recommended that it
be adopted in the final rule. Other commenters took issue with this
provision, stating that an escort may not prevent a person unfamiliar
with the mining environment from being inadvertently exposed to mine
hazards. Other commenters stated that they believed that providing a
visitor with an escort while the visitor is at the mine site is the
most effective way to protect the visitor from mine hazards. We agree
that people unfamiliar with mining can be protected if they are
accompanied by an experienced miner at all times. However, although not
required, there may be circumstances where it is advisable to provide
individuals with some oral instructions before they enter the mine
site, even though they will be accompanied by an experienced miner.
You should note that Sec. 46.9(i) of the final rule specifically
provides that you are not required to make a record of site-specific
hazard awareness training for persons who are not ``miners.'' However,
as indicated in Sec. 46.9, you must be able to demonstrate to
inspectors that you are in compliance with site-specific hazard
awareness training requirements. This issue is addressed in greater
detail under the preamble discussion for final Sec. 46.9.
Finally, several commenters questioned whether government agents at
the mine site would be covered by the site-specific hazard awareness
training requirements in the final rule. The commenter pointed out that
current MSHA policy for part 48 exempts government agents from hazard
awareness training requirements. We intend that this issue be addressed
in the same manner as it is under part 48. Although an argument could
be made in favor of requiring government officials to receive hazard
awareness training, we believe that these factors are outweighed by the
need for these officials to be unimpeded in the exercise of their
duties at the mine site. We expect that government agencies whose
personnel visit mine sites will ensure that their employees receive
adequate instruction and training so that the employees can carry out
their duties in a safe and healthful manner.
Section 46.12 Responsibility for Independent Contractor Training
Section 46.12 of the final rule generally adopts the provisions
proposed for the responsibility of training, which address the
allocation of responsibility for training between production-operators
and independent contractors with workers at the production-operators'
mine sites. Under the final rule, independent contractors are
responsible for ensuring that their employees who are ``miners''
receive comprehensive miner training. This is based on our
determination that the contractor, not the production-operator, is in
the best position to train his or her employees in the health and
safety aspects of their particular tasks. Similarly, production-
operators are primarily responsible for ensuring that independent
contractor employees who work at the mine site receive required site-
specific hazard awareness training. This is consistent with the fact
that production-operators are in the best position to provide necessary
information about hazards at their operations. Final Sec. 46.12 also
includes provisions that are intended to ensure that production-
operators and independent contractors share information with one
another about hazards at the mine, so that all employees can work
safely.
Final Sec. 46.12(a)(1) provides that each production-operator is
primarily responsible for ensuring that site-specific hazard awareness
training is given to employees of independent contractors. Under the
proposal, production-operators would have been primarily responsible
for ``providing'' site-specific hazard training to employees of
independent contractors.
This aspect of the proposal was the subject of much comment. Many
commenters objected to holding production-operators responsible for any
aspect of training for independent contractor employees. These
commenters maintained that it would be appropriate for the production-
operator to provide the independent contractor with information about
site-specific hazards, but that responsibility for providing the actual
training should rest with the independent contractor. One commenter
asserted that production-operators do not always have control of people
who come on and off site. Another commenter stated that a requirement
that production-operators train contractor employees would require the
production-operators to accept responsibility for a very large number
of individuals who may visit the mine only on occasion or for
relatively low-risk activity. This commenter was concerned that
production-operators would have to redirect their attention to
contractor employees, away from their own employees who may be working
at higher risk jobs.
[[Page 53129]]
Other commenters agreed with placing primary responsibility for
site-specific hazard awareness training on production-operators. One
commenter maintained that the production-operator is the only entity
knowledgeable enough to ensure that independent contractor employees
are aware of site-specific hazards at the mine site to which they may
be exposed. Other commenters insisted that the proposal placed
responsibility for training contractor employees where it belongs-on
the production-operator for hazard awareness training and on the
independent contractor for comprehensive training. Several commenters
believed that the proposed requirements would enhance communication
between production-operators and independent contractors.
We continue to believe, as indicated in the preamble to the
proposed rule, that it is appropriate to place primary responsibility
for site-specific hazard awareness training on production-operators.
Production-operators have overall responsibility for health and safety
conditions at their mine sites and are in the best position to convey
information about site-specific hazards to workers who come onto mine
property. However, as we explained in the preamble to the proposed
rule, final Sec. 46.12(a)(1) does not require production-operators to
personally provide site-specific hazard awareness training to the
employees of an independent contractor. For these reasons, the language
of the final rule varies slightly from the language in the proposal.
The final rule provides that production-operators are primarily
responsible for ``ensuring'' that independent contractor employees
receive required site-specific hazard awareness training. This is
intended to clarify that production-operators do not need to provide
the training themselves but must ensure that the training has been
given. For example, one commenter recommended that the production-
operator and the independent contractor coordinate whether the
production-operator will provide site-specific hazard awareness
training information to independent contractor management, who would
then train the contractor employees, or whether the production-operator
will provide the information directly to the contractor employees. This
is an acceptable approach under the final rule. Consistent with final
Sec. 46.4, production-operators may provide independent contractors
with site-specific hazard awareness information or training materials
and arrange for the contractors to provide the training to the
contractors' employees. However, production-operators retain the
primary responsibility of ensuring that everyone who comes onto mine
sites has received the necessary site-specific hazard awareness
training.
A few commenters appeared to misunderstand the requirements of
proposed Sec. 46.12(a). For example, one commenter observed that
production-operators often hire contractors because production-
operators often do not have the equipment or knowledge to do the job.
In that instance, the commenter maintained, it would be wrong to expect
the production-operator to provide comprehensive training to contractor
employees when the production-operator may not be familiar with their
work and the associated hazards. In response to this comment, we would
like to clarify that the final rule, like the proposal, places primary
responsibility on production-operators to ensure training for
contractor employees only with regard to site-specific hazard awareness
training. Final Sec. 46.12(b)(1), discussed below, explicitly provides
that independent contractors are primarily responsible for providing
their miner employees with any other training required under this part.
Final Sec. 46.12(a)(2) adopts the proposed requirement that
production-operators inform independent contractors of site-specific
hazards associated with the mine and the obligation of the contractor
to comply with our regulations, including part 46. This aspect of the
proposal received little comment, and we have adopted it unchanged into
the final rule.
Final Sec. 46.12(b)(1) provides that independent contractors who
employ ``miners'' are primarily responsible for providing comprehensive
training to their employees (i.e., training under Secs. 46.5 through
46.8). Virtually all commenters agreed with this aspect of the
proposal. We would point out that this provision does not preclude
independent contractors from arranging for the production-operator to
provide comprehensive training to the contractors' employees. However,
the primary responsibility for comprehensive training for contractor
employees continues to rest on the independent contractor.
A few commenters suggested that the final rule require production-
operators to verify that independent contractor employees have received
all training required under part 46. As we indicated in the preamble to
the proposal, the requirements of this section are consistent with our
current policy on independent contractors, which provides that
production-operators have overall compliance responsibility at their
mines, which includes ensuring compliance by independent contractors
with the Mine Act and regulations. Independent contractors are
responsible for compliance with the Act and regulations with respect to
their activities at a particular mine. We also cite independent
contractors for violations committed by them and their employees.
However, neither this policy nor the provisions of this section change
the production-operators' basic responsibilities for compliance with
the Act. Production-operators are subject to all provisions of the Act
and to all standards and regulations applicable to their mining
operations. One way for production-operators to address this
responsibility is to confirm when contracting with independent
contractors that the contractors' employees will receive health and
safety training and to include this as a provision in the contract. It
may also be prudent for them to request and maintain evidence of
independent contractors' compliance with training requirements.
Under final Sec. 46.12(b)(2), as under the proposal, an independent
contractor must inform the production-operator of any hazards of which
the contractor is aware that may be created by the performance of the
contractor's work at the mine. We did not receive any comments
specifically addressing the provisions of this paragraph, and we have
adopted it without change into the final rule.
XIV. References
Conference Rep. No. 95-461, 95th Cong., 1st Sess., (1977).
Federal Metal and Nonmetallic Mine Safety Act, September 16,
1966.
Federal Coal Mine Health and Safety Act, December 30, 1969.
Federal Mine Safety and Health Act, November 9, 1977.
H.R. Rep. No. 105-825 for H.R. 4328, 105th Cong., 2d Sess.
(1998).
Joint Industry and Labor draft proposed rule for Training and
Retraining of Miners Engaged in Shell Dredging or Employed at Sand,
Gravel, Surface Stone, Surface Clay, Colloidal Phosphate, or Surface
Limestone Mines, February 1, 1999.
MSHA, Health and Safety Training and Retraining of Miners, Final
Rule, October 13, 1978 [43 FR 47454-47468].
MSHA, Notice of Public Meetings, November 3, 1998 [63 FR 59258].
MSHA, Notice of Public Hearings, April 14, 1999 [63 FR 18528].
MSHA, Experienced Miner and Supervisor Training, Final Rule,
October 6, 1998 [63 FR 53750].
MSHA, Training and Retraining of Miners Engaged in Shell
Dredging or Employed at
[[Page 53130]]
Sand, Gravel, Surface Stone, Surface Clay, Colloidal Phosphate, or
Surface Limestone Mines, Proposed Rule, April 14, 1999, [64 FR
18498-18528].
Omnibus Appropriations Act for 1999, P.L. 105-277, October 21,
1998.
S. Rep. No. 105-300 for S. 2440, 105th Cong., 2d Sess., (1998).
Transportation Equity Act ``TEA-21'' (P.L. 105-178), June 9,
1998.
U.S. Geological Survey, U.S. Department of the Interior, Mineral
Industry Surveys, Crushed Stone and Sand and Gravel in the Third
Quarter of 1998, December 1998, pp. 1-5.
U.S. Geological Survey, U.S. Department of the Interior, Mineral
Industry Surveys, Crushed Stone and Sand and Gravel in the First
Quarter of 1999, June 1999, pp. 1-6.
U.S. Geological Survey, Mineral Commodity Summaries, Stone
(Crushed), Valentin V. Tepordei, January 1996, pp. 1-2.
U.S. Geological Survey, Mineral Commodity Summaries, Stone
(Crushed), Valentin V. Tepordei, February 1997, pp. 1-2.
U.S. Geological Survey, Mineral Commodity Summaries, Stone
(Crushed), Valentin V. Tepordei, January 1998, pp. 1-2.
U.S. Geological Survey, Mineral Commodity Summaries, Stone
(Crushed), Valentin V. Tepordei, January 1999, pp. 1-2.
U.S. Geological Survey, Mineral Commodity Summaries, Sand and
Gravel (Construction), Wallace P. Bolen, January 1996, pp. 1-2.
U.S. Geological Survey, Mineral Commodity Summaries, Sand and
Gravel (Construction), Wallace P. Bolen, February 1997, pp. 1-2.
U.S. Geological Survey, Mineral Commodity Summaries, Sand and
Gravel (Construction), Wallace P. Bolen, January 1998, pp. 1-2.
U.S. Geological Survey, Mineral Commodity Summaries, Sand and
Gravel (Construction), Wallace P. Bolen, January 1999, pp. 1-2.
List of Subjects
30 CFR Part 46
Mine safety and health, Reporting and recordkeeping requirements,
Surface mining, Training programs.
30 CFR Part 48
Mine safety and health, Reporting and recordkeeping requirements,
Training programs.
Dated: September 23, 1999.
J. Davitt McAteer,
Assistant Secretary for Mine Safety and Health.
Accordingly, under the authority of 30 U.S.C. 811 and for the
reasons set out in the preamble, MSHA is amending chapter I, title 30
of the Code of Federal Regulations, as follows:
PART 48--[AMENDED]
1. The authority citation for part 48 continues to read as follows:
Authority: 30 U.S.C. 811, 825.
2. Section 48.21 is amended by adding a new sentence to read as
follows:
Sec. 48.21 Scope.
* * * This part does not apply to training and retraining of miners
at shell dredging, sand, gravel, surface stone, surface clay, colloidal
phosphate, and surface limestone mines, which are covered under 30 CFR
Part 46.
3. A new part 46 is added to subchapter H of Title 30 of the Code
of Federal Regulations to read as follows:
PART 46--TRAINING AND RETRAINING OF MINERS ENGAGED IN SHELL
DREDGING OR EMPLOYED AT SAND, GRAVEL, SURFACE STONE, SURFACE CLAY,
COLLOIDAL PHOSPHATE, OR SURFACE LIMESTONE MINES.
Sec.
46.1 Scope.
46.2 Definitions.
46.3 Training plans.
46.4 Training plan implementation.
46.5 New miner training.
46.6 Newly hired experienced miner training.
46.7 New task training.
46.8 Annual refresher training.
46.9 Records of training.
46.10 Compensation for training.
46.11 Site-specific hazard awareness training.
46.12 Responsibility for independent contractor training.
Authority: 30 U.S.C. 811, 825.
Sec. 46.1 Scope.
The provisions of this part set forth the mandatory requirements
for training and retraining miners and other persons at shell dredging,
sand, gravel, surface stone, surface clay, colloidal phosphate, and
surface limestone mines.
Sec. 46.2 Definitions.
The following definitions apply in this part:
(a) Act means the Federal Mine Safety and Health Act of 1977.
(b) Competent person means a person designated by the production-
operator or independent contractor who has the ability, training,
knowledge, or experience to provide training to miners in his or her
area of expertise. The competent person must be able both to
effectively communicate the training subject to miners and to evaluate
whether the training given to miners is effective.
(c) Equivalent experience means work experience where the person
performed duties similar to duties performed in mining operations at
surface mines. Such experience may include, but is not limited to, work
as a heavy equipment operator, truck driver, skilled craftsman, or
plant operator.
(d)(1) Experienced miner means:
(i) A person who is employed as a miner on April 14, 1999;
(ii) A person who has at least 12 months of cumulative surface
mining or equivalent experience on or before October 2, 2000;
(iii) A person who began employment as a miner after April 14,
1999, but before October 2, 2000 and who has received new miner
training under Sec. 48.25 of this title or under proposed requirements
published April 14, 1999, which are available from the Office of
Standards, Regulations and Variances, MSHA, 4015 Wilson Boulevard,
Arlington, Virginia 22203; or
(iv) A person employed as a miner on or after October 2, 2000 who
has completed 24 hours of new miner training under Sec. 46.5 of this
part or under Sec. 48.25 of this title and who has at least 12
cumulative months of surface mining or equivalent experience.
(2) Once a miner is an experienced miner under this section, the
miner will retain that status permanently.
(e) Independent contractor means any person, partnership,
corporation, subsidiary of a corporation, firm, association, or other
organization that contracts to perform services at a mine under this
part.
(f) Mine site means an area of the mine where mining operations
occur.
(g)(1) Miner means:
(i) Any person, including any operator or supervisor, who works at
a mine and who is engaged in mining operations. This definition
includes independent contractors and employees of independent
contractors who are engaged in mining operations; and
(ii) Any construction worker who is exposed to hazards of mining
operations.
(2) The definition of ``miner'' does not include scientific
workers; delivery workers; customers (including commercial over-the-
road truck drivers); vendors; or visitors. This definition also does
not include maintenance or service workers who do not work at a mine
site for frequent or extended periods.
(h) Mining operations means mine development, drilling, blasting,
extraction, milling, crushing, screening, or sizing of minerals at a
mine; maintenance and repair of mining equipment; and associated
haulage of materials within the mine from these activities.
(i) New miner means a person who is beginning employment as a miner
with a production-operator or independent contractor and who is not an
experienced miner.
[[Page 53131]]
(j) Newly hired experienced miner means an experienced miner who is
beginning employment with a production-operator or independent
contractor. Experienced miners who move from one mine to another, such
as drillers and blasters, but who remain employed by the same
production-operator or independent contractor are not considered newly
hired experienced miners.
(k) Normal working hours means a period of time during which a
miner is otherwise scheduled to work, including the sixth or seventh
working day if such a work schedule has been established for a
sufficient period of time to be accepted as the common practice of the
production-operator or independent contractor, as applicable.
(l) Operator means any production-operator, or any independent
contractor whose employees perform services at a mine.
(m) Production-operator means any owner, lessee, or other person
who operates, controls, or supervises a mine under this part.
(n) Task means a work assignment or component of a job that
requires specific job knowledge or experience.
(o) We or us means the Mine Safety and Health Administration
(MSHA).
(p) You means production-operators and independent contractors.
Sec. 46.3 Training plans.
(a) You must develop and implement a written plan, approved by us
under either paragraph (b) or (c) of this section, that contains
effective programs for training new miners and newly hired experienced
miners, training miners for new tasks, annual refresher training, and
site-specific hazard awareness training.
(b) A training plan is considered approved by us if it contains, at
a minimum, the following information:
(1) The name of the production-operator or independent contractor,
mine name(s), and MSHA mine identification number(s) or independent
contractor identification number(s);
(2) The name and position of the person designated by you who is
responsible for the health and safety training at the mine. This person
may be the production-operator or independent contractor;
(3) A general description of the teaching methods and the course
materials that are to be used in the training program, including the
subject areas to be covered and the approximate time or range of time
to be spent on each subject area.
(4) A list of the persons and/or organizations who will provide the
training, and the subject areas in which each person and/or
organization is competent to instruct; and
(5) The evaluation procedures used to determine the effectiveness
of training.
(c) A plan that does not include the minimum information specified
in paragraphs (b)(1) through (b)(5) of this section must be submitted
to and approved by the Regional Manager, Educational Field Services
Division, or designee, for the region in which the mine is located. You
also may voluntarily submit a plan for Regional Manager approval. You
must notify miners or their representatives when you submit a plan for
Regional Manager approval. Within two weeks of receipt or posting of
the plan, miners and their representatives may also request review and
approval of the plan by the Regional Manager and must notify the
production-operator or independent contractor of such request.
(d) You must provide the miners' representative, if any, with a
copy of the plan at least 2 weeks before the plan is implemented or, if
you request MSHA approval of your plan, at least two weeks before you
submit the plan to the Regional Manager for approval. At mines where no
miners' representative has been designated, you must post a copy of the
plan at the mine or provide a copy to each miner at least 2 weeks
before you implement the plan or submit it to the Regional Manager for
approval.
(e) Within 2 weeks following the receipt or posting of the training
plan under paragraph (d) of this section, miners or their
representatives may submit written comments on the plan to you, or to
the Regional Manager, as appropriate.
(f) The Regional Manager must notify you and miners or their
representatives in writing of the approval, or status of the approval,
of the training plan within 30 calendar days of the date we received
the training plan for approval, or within 30 calendar days of the date
we received the request by a miner or miners' representative that we
approve your plan.
(g) You must provide the miners' representative, if any, with a
copy of the approved plan within one week after approval. At mines
where no miners' representative has been designated, you must post a
copy of the plan at the mine or provide a copy to each miner within one
week after approval.
(h) If you, miners, or miners' representatives wish to appeal a
decision of the Regional Manager, you must send the appeal, in writing,
to the Director for Educational Policy and Development, MSHA, 4015
Wilson Boulevard, Arlington, Virginia 22203, within 30 calendar days
after notification of the Regional Manager's decision. The Director
will issue a final decision of the Agency within 30 calendar days after
receipt of the appeal.
(i) You must make available at the mine a copy of the current
training plan for inspection by us and for examination by miners and
their representatives. If the training plan is not maintained at the
mine, you must have the capability to provide the plan within one
business day upon request by us, miners, or their representatives.
(j) You must comply with the procedures for plan approval under
this section whenever the plan undergoes revisions.
(k) The addresses for the EFS Regional Managers are as follows.
Current information on the EFS organization is available on MSHA's
Internet Home Page at http://www.msha.gov.
Eastern Regional Manager
Educational Field Services, National Mine Health and Safety Academy,
1301 Airport Road, Beaver, WV 25813-9426, Telephone: (304) 256-3223,
FAX: (304) 256-3319, E-mail: [email protected]
Western Regional Manager
Educational Field Services, P.O. Box 25367, Denver, CO 80225-0367,
Telephone: (303) 231-5434, FAX: (304) 231-5474, E-mail:
[email protected]
Sec. 46.4 Training plan implementation.
(a) You must ensure that each program, course of instruction, or
training session is:
(1) Conducted in accordance with the written training plan;
(2) Presented by a competent person; and
(3) Presented in language understood by the miners who are
receiving the training.
(b) You may conduct your own training programs or may arrange for
training to be conducted by: state or federal agencies; associations of
production-operators or independent contractors; miners'
representatives; consultants; manufacturers' representatives; private
associations; educational institutions; or other training providers.
(c) You may substitute, as applicable, health and safety training
required by the Occupational Safety and Health Administration (OSHA),
or other federal or state agencies to meet requirements under this
part. This training must be relevant to training subjects required in
this part. You must document the
[[Page 53132]]
training in accordance with Sec. 46.9 of this part.
(d) Training methods may consist of classroom instruction,
instruction at the mine, interactive computer-based instruction or
other innovative training methods, alternative training technologies,
or any combination of training methods.
(e) Employee health and safety meetings, including informal health
and safety talks and instruction, may be credited under this part
toward either new miner training, newly hired experienced miner
training, or annual refresher training requirements, as appropriate,
provided that you document each training session in accordance with
Sec. 46.9 of this part. In recording the duration of training, you must
include only the portion of the session actually spent in training.
Sec. 46.5 New miner training.
(a) Except as provided in paragraphs (f) and (g) of this section,
you must provide each new miner with no less than 24 hours of training
as prescribed by paragraphs (b), (c), and (d). Miners who have not yet
received the full 24 hours of new miner training must work where an
experienced miner can observe that the new miner is performing his or
her work in a safe and healthful manner.
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
(b) Before a new miner begins work at the mine-- You must provide the miner with no less than 4 hours of
training in the following subjects, which must also
address site-specific hazards:
(1) An introduction to the work environment,
including a visit and tour of the mine, or portions
of the mine that are representative of the entire
mine (walkaround training). The method of mining or
operation utilized must be explained and observed;
(2) Instruction on the recognition and avoidance of
electrical hazards and other hazards present at the
mine, such as traffic patterns and control, mobile
equipment (e.g., haul trucks and front-end
loaders), and loose or unstable ground conditions;
(3) A review of the emergency medical procedures,
escape and emergency evacuation plans, in effect at
the mine, and instruction on the firewarning
signals and firefighting procedures;
(4) Instruction on the health and safety aspects of
the tasks to be assigned, including the safe work
procedures of such tasks, and the mandatory health
and safety standards pertinent to such tasks;
(5) Instruction on the statutory rights of miners
and their representatives under the Act;
(6) A review and description of the line of
authority of supervisors and miners'
representatives and the responsibilities of such
supervisors and miners' representatives; and
(7) An introduction to your rules and procedures for
reporting hazards.
----------------------------------------------------------------------------------------------------------------
(c) No later than 60 calendar days after a new miner You must provide the miner with training in the
begins work at the mine-- following subject:
(1) Instruction and demonstration on the use, care,
and maintenance of self-rescue and respiratory
devices, if used at the mine; and
(2) A review of first aid methods.
----------------------------------------------------------------------------------------------------------------
(d) No later than 90 calendar days after a new miner You must provide the miner with the balance, if any, of
begins work at the mine-- the 24 hours of training on any other subjects that
promote occupational health and safety for miners at
the mine.
----------------------------------------------------------------------------------------------------------------
(e) Practice under the close observation of a competent person may
be used to fulfill the requirement for training on the health and
safety aspects of an assigned task in paragraph (b)(4) of this section,
if hazard recognition training specific to the assigned task is given
before the miner performs the task.
(f) A new miner who has less than 12 cumulative months of surface
mining or equivalent experience and has completed new miner training
under this section or under Sec. 48.25 of this title within 36 months
before beginning work at the mine does not have to repeat new miner
training. However, you must provide the miner with training specified
in paragraph (b) of this section before the miner begins work at the
mine.
(g) A new miner training course completed under Sec. 48.5 or
Sec. 48.25 of this title may be used to satisfy the requirements of
paragraphs (a), (b), and (c) of this section, if the course was
completed by the miner within 36 months before beginning work at the
mine; and the course is relevant to the subjects specified in
paragraphs (b) and (c) of this section.
Sec. 46.6 Newly hired experienced miner training.
(a) Except as provided in paragraph (f) of this section, you must
provide each newly hired experienced miner with training as prescribed
by paragraphs (b) and (c).
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
(b) Before a newly hired experienced miner begins work You must provide the miner with training in the
at the mine-- following subjects, which must also address site-
specific hazards:
(1) An introduction to the work environment,
including a visit and tour of the mine, or portions
of the mine that are representative of the entire
mine (walkaround training). The method of mining or
operation utilized must be explained and observed;
(2) Instruction on the recognition and avoidance of
electrical hazards and other hazards present at the
mine, such as traffic patterns and control, mobile
equipment (e.g., haul trucks and front-end
loaders), and loose or unstable ground conditions;
(3) A review of the emergency medical procedures,
escape and emergency evacuation plans, in effect at
the mine, and instruction on the firewarning
signals and firefighting procedures;
(4) Instruction on the health and safety aspects of
the tasks to be assigned, including the safe work
procedures of such tasks, and the mandatory health
and safety standards pertinent to such tasks;
(5) Instruction on the statutory rights of miners
and their representatives under the Act;
(6) A review and description of the line of
authority of supervisors and miners'
representatives and the responsibilities of such
supervisors and miners' representatives; and
(7) An introduction to your rules and procedures for
reporting hazards.
----------------------------------------------------------------------------------------------------------------
[[Page 53133]]
(c) No later than 60 calendar days after a newly hired You must provide the miner with an instruction and
experienced miner begins work at the mine-- demonstration on the use, care, and maintenance of
self-rescue and respiratory devices, if used at the
mine.
----------------------------------------------------------------------------------------------------------------
(d) Practice under the close observation of a competent person may
be used to fulfill the requirement for training on the health and
safety aspects of an assigned task in paragraph (b)(4) of this section,
if hazard recognition training specific to the assigned task is given
before the miner performs the task.
(e) In addition to subjects specified in paragraphs (b) and (c) of
this section, you may provide training on any other subjects that
promote occupational health and safety for miners.
(f) You are not required to provide a newly hired experienced miner
who returns to the same mine, following an absence of 12 months or
less, with the training specified in paragraphs (b) and (c) of this
section. Instead you must provide such miner with training on any
changes at the mine that occurred during the miner's absence that could
adversely affect the miner's health or safety. This training must be
given before the miner begins work at the mine. If the miner missed any
part of annual refresher training under Sec. 46.8 of this part during
the absence, you must provide the miner with the missed training no
later than 90 calendar days after the miner begins work at the mine.
Sec. 46.7 New task training.
(a) You must provide any miner who is reassigned to a new task in
which he or she has no previous work experience with training in the
health and safety aspects and safe work procedures specific to that new
task. This training must be provided before the miner performs the new
task.
(b) If a change occurs in a miner's assigned task that affects the
health and safety risks encountered by the miner, you must provide the
miner with training under paragraph (a) of this section that addresses
the change.
(c) You are not required to provide new task training under
paragraphs (a) and (b) of this section to miners who have received
training in a similar task or who have previous work experience in the
task, and who can demonstrate the necessary skills to perform the task
in a safe and healthful manner. To determine whether task training
under this section is required, you must observe that the miner can
perform the task in a safe and healthful manner.
(d) Practice under the close observation of a competent person may
be used to fulfill the requirement for task training under this
section, if hazard recognition training specific to the assigned task
is given before the miner performs the task.
(e) Training provided under this section may be credited toward new
miner training, as appropriate.
Sec. 46.8 Annual refresher training.
(a) You must provide each miner with no less than 8 hours of annual
refresher training--
(1) No later than 12 months after the miner begins work at the
mine, or no later than March 30, 2001, whichever is later; and
(2) Thereafter, no later than 12 months after the previous annual
refresher training was completed.
(b) The refresher training must include instruction on changes at
the mine that could adversely affect the miner's health or safety.
(c) Refresher training must also address other health and safety
subjects that are relevant to mining operations at the mine.
Recommended subjects include, but are not limited to: applicable health
and safety requirements, including mandatory health and safety
standards; transportation controls and communication systems; escape
and emergency evacuation plans, firewarning and firefighting; ground
conditions and control; traffic patterns and control; working in areas
of highwalls; water hazards, pits, and spoil banks; illumination and
night work; first aid; electrical hazards; prevention of accidents;
health; explosives; and respiratory devices. Training is also
recommended on the hazards associated with the equipment that has
accounted for the most fatalities and serious injuries at the mines
covered by this rule, including: mobile equipment (haulage and service
trucks, front-end loaders and tractors); conveyor systems; cranes;
crushers; excavators; and dredges. Other recommended subjects include:
maintenance and repair (use of hand tools and welding equipment);
material handling; fall prevention and protection; and working around
moving objects (machine guarding).
Sec. 46.9 Records of training.
(a) You must record and certify on MSHA Form 5000-23, or on a form
that contains the information listed in paragraph (b) of this section,
that each miner has received training required under this part.
(b) The form must include:
(1) The printed full name of the person trained;
(2) The type of training, the duration of the training, the date
the training was received, the name of the competent person who
provided the training:
(3) The name of the mine or independent contractor, MSHA mine
identification number or independent contractor identification number,
and location of training (if an institution, the name and address of
the institution).
(4) The statement, ``False certification is punishable under
Sec. 110(a) and (f) of the Federal Mine Safety and Health Act,''
printed in bold letters and in a conspicuous manner; and
(5) A statement signed by the person designated in the MSHA-
approved training plan for the mine as responsible for health and
safety training, that states ``I certify that the above training has
been completed.''
(c) You must make a record of training under paragraphs (b)(1)
through (b)(4) of this section--
(1) For new miner training under Sec. 46.5, no later than--
(i) when the miner begins work at the mine as required under
Sec. 46.5(b);
(ii) 60 calendar days after the miner begins work at the mine as
required under Sec. 46.5(c); and
(iii) 90 calendar days after the miner begins work at the mine as
required under Sec. 46.5(d), if applicable.
(2) For newly hired experienced miner training under Sec. 46.6, no
later than--
(i) when the miner begins work at the mine; and
(ii) 60 calendar days after the miner begins work at the mine.
(3) Upon completion of new task training under Sec. 46.7;
(4) After each session of annual refresher training under
Sec. 46.8; and
(5) Upon completion by miners of site-specific hazard awareness
training under Sec. 46.11.
(d) You must ensure that all records of training under paragraphs
(c)(1) through (c)(5) of this section are certified under paragraph
(b)(5) of this section and a copy provided to the miner--
(1) Upon completion of the 24 hours of new miner training;
(2) Upon completion of newly hired experienced miner training;
[[Page 53134]]
(3) At least once every 12 months for new task training, or upon
request by the miner, if applicable;
(4) Upon completion of the 8 hours of annual refresher training;
and
(5) Upon completion by miners of site-specific hazard awareness
training.
(e) False certification that training was completed is punishable
under Sec. 110(a) and (f) of the Act.
(f) When a miner leaves your employ, you must provide each miner
with a copy of his or her training records and certificates upon
request.
(g) You must make available at the mine a copy of each miner's
training records and certificates for inspection by us and for
examination by miners and their representatives. If training
certificates are not maintained at the mine, you must be able to
provide the certificates upon request by us, miners, or their
representatives.
(h) You must maintain copies of training certificates and training
records for each currently employed miner during his or her employment,
except records and certificates of annual refresher training under
Sec. 46.8, which you must maintain for only two years. You must
maintain copies of training certificates and training records for at
least 60 calendar days after a miner terminates employment.
(i) You are not required to make records under this section of
site-specific hazard awareness training you provide under Sec. 46.11 of
this part to persons who are not miners under Sec. 46.2. However, you
must be able to provide evidence to us, upon request, that the training
was provided, such as the training materials that are used; copies of
written information distributed to persons upon their arrival at the
mine; or visitor log books that indicate that training has been
provided.
Sec. 46.10 Compensation for training.
(a) Training must be conducted during normal working hours. Persons
required to receive training must be paid at a rate of pay that
corresponds to the rate of pay they would have received had they been
performing their normal work tasks.
(b) If training is given at a location other than the normal place
of work, persons required to receive such training must be compensated
for the additional costs, including mileage, meals, and lodging, they
may incur in attending such training sessions.
Sec. 46.11 Site-specific hazard awareness training.
(a) You must provide site-specific hazard awareness training before
any person specified under this section is exposed to mine hazards.
(b) You must provide site-specific hazard awareness training, as
appropriate, to any person who is not a miner as defined by Sec. 46.2
of this part but is present at a mine site, including:
(1) Office or staff personnel;
(2) Scientific workers;
(3) Delivery workers;
(4) Customers, including commercial over-the-road truck drivers;
(5) Construction workers or employees of independent contractors
who are not miners under Sec. 46.2 of this part;
(6) Maintenance or service workers who do not work at the mine site
for frequent or extended periods; and
(7) Vendors or visitors.
(c) You must provide miners, such as drillers or blasters, who move
from one mine to another mine while remaining employed by the same
production-operator or independent contractor with site-specific hazard
awareness training for each mine.
(d) Site-specific hazard awareness training is information or
instructions on the hazards a person could be exposed to while at the
mine, as well as applicable emergency procedures. The training must
address site-specific health and safety risks, such as unique geologic
or environmental conditions, recognition and avoidance of hazards such
as electrical and powered-haulage hazards, traffic patterns and
control, and restricted areas; and warning and evacuation signals,
evacuation and emergency procedures, or other special safety
procedures.
(e) You may provide site-specific hazard awareness training through
the use of written hazard warnings, oral instruction, signs and posted
warnings, walkaround training, or other appropriate means that alert
persons to site-specific hazards at the mine.
(f) Site-specific hazard awareness training is not required for any
person who is accompanied at all times by an experienced miner who is
familiar with hazards specific to the mine site.
Sec. 46.12 Responsibility for independent contractor training.
(a)(1) Each production-operator has primary responsibility for
ensuring that site-specific hazard awareness training is given to
employees of independent contractors who are required to receive such
training under Sec. 46.11 of this part.
(2) Each production-operator must provide information to each
independent contractor who employs a person at the mine on site-
specific mine hazards and the obligation of the contractor to comply
with our regulations, including the requirements of this part.
(b)(1) Each independent contractor who employs a miner, as defined
in Sec. 46.2, at the mine has primary responsibility for complying with
Secs. 46.3 through 46.10 of this part, including providing new miner
training, newly hired experienced miner training, new task training,
and annual refresher training.
(2) The independent contractor must inform the production-operator
of any hazards of which the contractor is aware that may be created by
the performance of the contractor's work at the mine.
[FR Doc. 99-25273 Filed 9-29-99; 8:45 am]
BILLING CODE 4510-43-P
