1501:14-2-07 Certified mine foreperson.

 

 

 

Rule Summary and Fiscal Analysis (Part A)

 

Department of Natural Resources

Agency Name

 

Division of Mineral Resources Management-Industrial Mineral

Brock Miskimen

Division                                                                  Contact

2045 Morse Road Bldg. D-3 Columbus OH 43229-6693

614-265-6885

Agency Mailing Address (Plus Zip)                                       Phone                     Fax

[e-mail]

Email

1501:14-2-07

Rule Number

AMENDMENT

TYPE of rule filing

Rule Title/Tag Line              Certified mine foreperson.

RULE SUMMARY

1.  Is the rule being filed for five year review (FYR)? Yes

2.  Are you proposing this rule as a result of recent legislation? Yes

Bill Number: HB64                 General Assembly: 131           Sponsor: Smith

3.  Statute prescribing the procedure in accordance with the agency is required to adopt the rule: 119.03

4.  Statute(s) authorizing agency to adopt the rule: 1514.40, 1514.47

5.  Statute(s) the rule, as filed, amplifies or implements: 1514.47

6.  State the reason(s) for proposing (i.e., why are you filing,) this rule:

To update the rule with the changes made by HB 64 of the 131st General Assembly and to comply with Ohio's five-year-review requirement pursuant to Ohio Revised Code section 106.03.

7.  If the rule is an AMENDMENT, then summarize the changes and the content

of the proposed rule; If the rule type is RESCISSION, NEW or NO CHANGE, then summarize the content of the rule:

This rule contains the requirements for employing a certified mine foreperson and for conducting examinations of surface mining operations for the purposes of 30 CFR Part 56. The rule also contains the requirements for the certification, reissuance and renewal of certification, temporary certification, and suspension or revocation of certification of mine forepersons in Ohio.

The Division of Mineral Resources Management has fully reviewed this rule consistent with ORC section 106.03, and has determined that the following revisions are needed:

Numerous changes made to this rule per the amendments of HB 64, effective 9/29/2015.

(A) and new sub-paragraphs (1) to (4). Revised per HB 64: language of ORC section 1514.47(A) added.

(B)(8). Revised to "Ohio Treasurer of State" to mirror the language of OAC 113-1-02(C)(1).

(B)(9). Revised per HB 64, ORC section 1514.47(C)(1). After September 29, 2015, certificates issued under this rule will no longer expire unless the certificate holder has not been employed in a surface mining operation for five consecutive years.

(C). Revised to reflect how temporary mine foreperson certifications are currently handled: upon the request of the operator, a temporary certification can be given to the employee of a surface industrial minerals operation, provided the employee is within six months of having accumulated the required experience for certification.

(C)(1). Revised to use the active voice, per the Legislative Service Commission's Rule Drafting Manual.

(C)(2). The phrase, "the temporary certification shall expire," added to clarify.

(C)(3). New paragraph that reflects how temporary mine foreperson certifications are currently handled: a temporary certification does not expire if the person holding the certification has applied to take the certification examination and the application is postmarked by midnight of the expiration date of the temporary certification. The person then needs to take and pass the next scheduled certification examination.

(E), and (E)(1) to (5). Most currently effective provisions proposed to be removed and replaced with language related to reissuance and expiration of a mine foreperson certificate per HB 64. See ORC sections 1514.40(F) and 1514.47(C).

(E). "renewal" changed to "reissuance" per ORC section 1514.40(F). "Expiration" added per ORC section 1514.47(C)(1).

(E)(1). Establishes requirements for reissuance of mine foreperson certification per ORC sections 1514.40(F) and 1514.47(C)(4). A person holding a certificate that has not expired can request the Chief to reissue a certificate that does not expire; no fee will be charged this person.

(E)(2). Establishes requirements and fee for reissuance of mine foreperson certification per ORC sections 1514.40(F) and 1514.47(C)(5). A person holding a certificate that expired in 2012 who has not been issued a new certificate can request the Chief to reissue a certificate that does not expire. The Chief shall reissue the certificate, provided the person is in compliance with all other applicable requirements, submits an application for reissuance with the Chief, and pays a fee of $25.

(E)(3). Provision of ORC section 1514.47(C)(1) added, regarding expiration of a certificate if the certificate holder has not been employed in a surface mining operation for five consecutive years. Includes specifics on the contents of a petition.

$25 fee for reissuance of certification is paid only if petition is granted. If petition is denied, the holder of the expired certificate may apply for a new certificate by retaking the mine foreperson exam and fulfilling the other certification requirements of ORC section 1514.47(B) and paragraph (B) of this rule.

(E)(4). Provision related to ORC section 1514.47(C)(1) added: a certificate holder who has not been employed in a surface mining operation for five consecutive years shall not perform the duties of a certified mine foreperson unless the Chief reissues the certificate under (E)(3) of this rule or issues a new certificate under (B) of this rule.

(F)(1) and (2). "reissued" and "reissuance" added per ORC sections 1514.40(F) and 1514.47(C)(1), (4) and (5). ORC section 1514.47(C)(2) still uses the term "renew" so that word is not proposed to be removed from this paragraph.

8.  If the rule incorporates a text or other material by reference and the agency claims the incorporation by reference is exempt from compliance with sections

121.71 to 121.74 of the Revised Code because the text or other material is generally available to persons who reasonably can be expected to be affected by the rule, provide an explanation of how the text or other material is generally available to those persons:

This rule incorporates two texts by reference that are easily available to the public either on-line from the U.S. Government Printing Office website or at a public library. These texts are:

U.S. Code of Federal Regulations, MSHA requirements, 30 CFR Parts 46 and 56,

as amended.

As part of this IM amended rules package, the Division of Mineral Resources Management is updating its two incorporation by reference rules for IM surface mining, 1501:14-1-16 and 1501:14-2-01. These rules tell the public which editions of the United States Code and the Code of Federal Regulations are being incorporated by reference, and provide the specific website address where the federal laws and federal rules can be found.

9.  If the rule incorporates a text or other material by reference, and it was infeasible for the agency to file the text or other material electronically, provide an explanation of why filing the text or other material electronically was infeasible:

N/A

10.  If the rule is being rescinded and incorporates a text or other material by reference, and it was infeasible for the agency to file the text or other material, provide an explanation of why filing the text or other material was infeasible:

Not Applicable.

11.  If revising or refiling this rule, identify changes made from the previously filed version of this rule; if none, please state so. If applicable, indicate each specific paragraph of the rule that has been modified:

This rule is different from the previously filed version. The difference is the following:

(A)(3) and (A)(4). In each of these paragraphs, the first sentence is revised so that the language of the rule does not conflict with the language of ORC section 1514.47(A)(3) and (4): the word "and" has been replaced by the word "or" in the phrase "the ability, training, knowledge, or experience..."

12.  Five Year Review (FYR) Date: 6/7/2016

(If the rule is not exempt and you answered NO to question No. 1, provide the scheduled review date. If you answered YES to No. 1, the review date for this rule is the filing date.)

NOTE: If the rule is not exempt at the time of final filing, two dates are required: the current review date plus a date not to exceed 5 years from the effective date for Amended rules or a date not to exceed 5 years from the review date for No Change rules.

FISCAL ANALYSIS

13.  Estimate the total amount by which this proposed rule would increase

/decrease either revenues/ expenditures for the agency during the current biennium (in dollars): Explain the net impact of the proposed changes to the budget of your agency/department.

This will decrease revenues. See discussion below.

The fiscal impact related to the expiration of mine foreperson certification is due to the changes enacted by HB 64, not due to the changes in this rule. Under the previous mine foreperson certification requirements established by HB 443, effective 4/6/2007, IM mine foreperson certificates expired after five years if they were not renewed. Per HB 64, effective 9/29/2015, a mine foreperson certification no longer expires after five years. Now a mine foreperson certificate only expires if the certificate holder has not been employed in a surface mining operation for five consecutive years. In addition, HB 64 gives a certified mine foreperson the authority to designate another person as a "competent person" if the person has had the miner training required under 30 C.F.R. part 46 and has been determined by the certified mine foreperson to have demonstrated the ability, training, knowledge, or experience necessary to perform the duty to which the person is assigned. The Division of Mineral Resources Management anticipates that this new ability to designate a person as a "competent person" will result in there being fewer certified mine forepersons at surface industrial minerals sites: the examinations of surface mining operations for the purposes of 30 C.F.R. part 56 are as likely to be conducted by a "competent person," designated by the certified mine foreperson, as by the certified mine foreperson him or herself.

Therefore, the Division will experience a small reduction in its future revenue for two reasons:

-   Mine forepersons will not need to renew their certifications every five years. The Division is unable to calculate a dollar amount for this lost revenue because it is not known how many mine forepersons would have been seeking to renew their certifications every five years, but the cost under the HB 443 requirements was only $25 per renewal.

-   Fewer employees of surface industrial minerals mines will seek to become certified mine forepersons because they can instead be designated as "competent." The Division is unable to calculate a dollar amount for this lost revenue because it is not known how few certified mine forepersons there will be in the future. ORC 1514.47(A)(1) requires each operator of a surface mining operation to employ a certified mine foreperson. The cost for certification of a mine foreperson is $25.

The Division will continue to receive a small amount of revenue from the original issuance and reissuance of mine foreperson certificates. ORC section 1514.40(E) and (F) directs the Chief to establish requirements and fees for certification and reissuance of certification. This rule does not propose to change the $25 cost of an original certificate. The rule proposes to charge a $25 fee for reissuance of a certificate that does not expire only for those persons who allowed their certificates to expire under the old HB 443 certification requirements. Those persons who renewed their certifications (for a cost of $25) under the old HB 443 certification requirements will not be charged for reissuance of a certificate that does not expire.

14.  Identify the appropriation (by line item etc.) that authorizes each expenditure necessitated by the proposed rule:

Fund 5B3, the Mine Safety Fund, Appropriations Line Item 725674.

15.  Provide a summary of the estimated cost of compliance with the rule to all directly affected persons. When appropriate, please include the source for your information/estimated costs, e.g. industry, CFR, internal/agency:

The fiscal impacts related to the expiration of mine foreperson certification and related to "competent person" designation are due to the changes enacted by HB 64, not due to the changes in this rule. The Division estimates that the cost of compliance for surface industrial minerals operations will decrease.

Under the previous mine foreperson certification requirements established by HB 443, effective 4/6/2007, IM mine foreperson certificates expired after five years if they were not renewed. Per HB 64, effective 9/29/2015, a mine foreperson certification no longer expires after five years. Now a mine foreperson certificate only expires if the certificate holder has not been employed in a surface mining operation for five consecutive years. A person wishing to be certified as a mine foreperson at an industrial minerals surface mining operation will pay $25 for original certification -- no changes regarding original certification are proposed in this rule -- but will no longer have to renew this certification unless he or she has not been employed in a surface mining operation for five consecutive years, in which case renewal costs $25. A person whose certification expired under the previous requirements of HB 443 may obtain a reissued certification that does not expire for a cost of $25. A person whose certification expired and who also renewed his or her certification under the previous requirements of HB 443 may obtain a reissued certification that does not expire for no cost.

HB 64 gives a certified mine foreperson the authority to designate another person as a "competent person" if the person has had the miner training required under 30

C.F.R. part 46 and has been determined by the certified mine foreperson to have demonstrated the ability, training, knowledge, or experience necessary to perform the duty to which the person is assigned. The Division of Mineral Resources

Management anticipates that this new ability to designate a person as a "competent person" will result in there being fewer certified mine forepersons at surface industrial minerals sites: the examinations of surface mining operations for the purposes of 30 C.F.R. part 56 are as likely to be conducted by a "competent person," designated by the certified mine foreperson, as by the certified mine foreperson him or herself. ORC 1514.47(A)(1) requires each operator of a surface mining operation to employ a certified mine foreperson. The cost for certification of a mine foreperson is $25.

16.  Does this rule have a fiscal effect on school districts, counties, townships, or municipal corporations? No

17.  Does this rule deal with environmental protection or contain a component dealing with environmental protection as defined in R. C. 121.39? Yes

You must complete the Environmental rule Adoption/Amendment Form in order to comply with Am. Sub. 106 of the 121st General Assembly.

S.B. 2 (129th General Assembly) Questions

18.  Has this rule been filed with the Common Sense Initiative Office pursuant to

R.C. 121.82? Yes

19.  Specific to this rule, answer the following:

A.) Does this rule require a license, permit, or any other prior authorization to engage in or operate a line of business? No

This rule does not require a permit but ORC Chapter 1514. requires a permit to conduct industrial minerals surface mining in Ohio.

In addition, Ohio law requires IM operators to employ a certified mine foreperson or a person who qualifies under a training plan to conduct workplace safety examinations. ORC section 1514.47(A)(1) requires the operator of a surface mining operation to employ a certified mine foreperson to be in charge of the conditions and practices at the mine and to be responsible for conducting examinations of the surface mining operation under 30 C.F.R. Part 56, as amended. ORC section 1514.47(D) states that, in lieu of employing a certified mine foreperson, an IM surface mining operator may submit to the Chief a detailed training plan under which persons who qualify under the plan may conduct and document examinations at the surface mining operation for purposes of 30 CFR Part 56, as amended.

B.) Does this rule impose a criminal penalty, a civil penalty, or another sanction,

or create a cause of action, for failure to comply with its terms? No

This rule does not impose a penalty, but ORC Section 1514.99 imposes penalties for violating the requirements of ORC Chapter 1514.

The rule specifies that, if a certified mine foreperson purposely violates ORC Chapter 1514. or OAC Chapters 1501:14-1 to 1501:14-6, the Chief may suspend or revoke the certification after an investigation and hearing.

C.) Does this rule require specific expenditures or the report of information as a condition of compliance? Yes

This rule contains specific requirements for IM surface mining operators regarding workplace safety examinations, record-keeping, and temporary certification. The rule contains specific requirements for certified mine forepersons and those wishing to be certified as mine forepersons regarding qualifications, applications, fees, and examinations, as well as reissuance, renewal, suspension or revocation of certificates.

                                                                                                                                             

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Environmental Rule Adoption/Amendment Form

Pursuant to Am. Sub. H.B. 106 of the 121st General Assembly, prior to adopting a rule or an amendment to a rule dealing with environmental protection, or containing a component dealing with environmental protection, a state agency shall:

(1)    Consult with organizations that represent political subdivisions, environmental interests, business interests, and other persons affected by the proposed rule or amendment.

(2)   Consider documentation relevant to the need for, the environmental benefits or consequences of, other benefits of, and the technological feasibility of the proposed rule or rule amendment.

(3)  Specifically identify whether the proposed rule or rule amendment is being adopted or amended to enable the state to obtain or maintain approval to administer and enforce a federal environmental law or to participate in a federal environmental program, whether the proposed rule or rule amendment is more stringent than its federal counterpart, and, if the proposed rule or rule amendment is more stringent, the rationale for not incorporating its federal counterpart.

(4)   Include with the proposed rule or rule amendment and rule summary and fiscal analysis required to be filed with the Joint Committee on Agency Rule Review information relevant to the previously listed requirements.

(A)  Were organizations that represent political subdivisions, environmental interests, business interests, and other persons affected by the proposed rule or amendment consulted ? Yes

Please list each contact.

Ohio Aggregates and Industrial Minerals Association Ohio Environmental Council

(B)  Was documentation that is relevant to the need for, the environmental benefits or consequences of, other benefits of, and the technological feasibility of the proposed rule or amendment considered ? Yes

Please list the information provided and attach a copy of each piece of documentation to this form. (A SUMMARY OR INDEX MAY BE ATTACHED IN LIEU OF THE ACTUAL DOCUMENTATION.)

Ohio Revised Code sections 1514.40 and 1514.47. MSHA regulations, 30 CFR Parts 46 and 50, as amended.

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(C)  Is the proposed rule or rule amendment being adopted or amended to enable the state to obtain or maintain approval to administer and enforce a federal environmental law or to participate in a federal environmental program ? No

Is the proposed rule or rule amendment more stringent than its federal counterpart ? Not Applicable

(D)  If this is a rule amendment that is being adopted under a state statute that establishes standards with which the amendment is to comply, is the proposed rule amendment more stringent than the rule that it is proposing to amend? No