Training Standards for Shaft and Slope Construction Workers at Underground Mines and Surface Areas of Underground Mines [Rules and Regulations] [12/30/2005]

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November 23, 2008 DOL Home > MSHA

MSHA Final Rule

Training Standards for Shaft and Slope Construction Workers at Underground Mines and Surface Areas of Underground Mines [12/30/2005]

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Volume 70, Number 250, Page 77715-77728

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Part VII

Department of Labor

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Mine Safety and Health Administration

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30 CFR Part 48

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

30 CFR Part 75

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

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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 48

RIN 1219-AB35

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

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

ACTION: Final rule.

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

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

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

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

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

I. Background

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

II. Discussion of Final Rule

A. Introduction

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

[[Page 77717]]

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

Analysis of Accident and Injury Data

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

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

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

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

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

Table 3.--Top Five Accident Classifications
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Shaft & slope
Mining Independent construction
Ranking Accident classification operations contractors operations
(percent) (percent) (percent)
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1..................................... Handling of Materials... 32.44 31.87 27.24
2..................................... Slip or Fall Of Person.. 18.19 20.74 17.90
3..................................... Machinery............... 13.49 14.95 26.46
4..................................... Handtools (nonpowered).. 12.46 11.68 6.23
5..................................... Powered Haulage......... 8.74 9.33 5.45
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As indicated in Table 3, mining operations, independent
contractors, and shaft and slope construction operations have the same
top five accident classifications. While the comparative percentages
may vary between mining sectors, the data generally indicate the
similarities in accident types throughout mining, including shaft and
slope construction.
One commenter said that hazards from working at heights distinguish
shaft and slope construction from other mining. Yet, the data in Table
3 suggest that, to the extent slip and fall hazards correlate to
heights, all miners experience about the same percentage of slip and
fall accidents.

Comparative Tasks and Hazards

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

Diverse Small and Mobile Crews

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

[[Page 77719]]

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

Applicability of Part 48 Training

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

[[Page 77720]]

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

Compliance Assistance

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

B. Section-by-Section Analysis

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

Clarification of Terms

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

[[Page 77721]]

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

Coverage of All Construction Workers and Subpart C

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

Comprehensive Training or Hazard Training

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

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

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

[[Page 77722]]

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

a. Shaft and Slope Training Plans

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

b. Training Plan Development, Submission, and Approval

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

[[Page 77723]]

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

c. Training Programs and Hours

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

d. Crediting Prior Training and Experience

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

e. Approved Instructors

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

[[Page 77724]]

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

III. Executive Order 12866

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

Mining Sectors Affected

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

Benefits

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

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

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

Compliance Costs

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

IV. Feasibility

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

[[Page 77725]]

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

V. Regulatory Flexibility Act Certification

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

Definition of a Small Mine

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

Factual Basis for Certification

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

Derivation of Costs and Revenues

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

\2\ The source of the financial data for these two contractor
firms was the Thomas Registry, located online at
http://www.thomasregistry.com. Thomas Register is an online resource for

finding companies and products manufactured in North America.
---------------------------------------------------------------------------

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

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

Results of Screening Analysis

[[Page 77726]]

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

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

VI. Paperwork Reduction Act of 1995

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

VII. Other Regulatory Considerations

A. The Unfunded Mandates Reform Act

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

B. National Environmental Policy Act

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

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

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

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

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

E. Executive Order 12988: Civil Justice Reform

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

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

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

G. Executive Order 13132: Federalism

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

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

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

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

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

[[Page 77727]]

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

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

VIII. Regulatory Text

List of Subjects in 30 CFR Part 48

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

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

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

PART 48--[AMENDED]

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

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

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

Sec. 48.2 Definitions.

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

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

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

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

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

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

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

Subpart B--[Amended]

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

Sec. 48.22 Definitions.

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

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

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

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

[[Page 77728]]

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

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

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

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

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