Title of Regulation: 4VAC25-35. Certification Requirements for Mineral Miners (amending 4VAC25-35-10, 4VAC25-35-20, 4VAC25-35-40 through 4VAC25-35-70, 4VAC25-35-80 through, 4VAC25-35-120; adding 4VAC25-35-5).

Statutory Authority: § 45.1-161.292:19 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 18, 2013.

Effective Date: January 3, 2014.

Agency Contact: Michael Skiffington, Regulatory Coordinator, Department of Mines, Minerals and Energy, 1100 Bank Street, 8th Floor, Richmond, VA 23219-3402, telephone (804) 692-3212, FAX (804) 692-3237, TTY (800) 828-1120, or email mike.skiffington@dmme.virginia.gov.

Basis: Section 45.1-161.292:19 of the Code of Virginia directs the Department of Mines, Minerals and Energy (DMME) to issue certifications for mineral miners to ensure the health and safety of persons and property associated with mineral mining and grants DMME the authority to promulgate regulations necessary or incidental to the performance of its duties.

Purpose: The purpose of this regulatory action is to amend the certification requirements for mineral miners to allow for electronic submission of certification forms. Doing so will allow DMME to more effectively and efficiently serve its customers and protect the health, safety, and welfare of the public.

Rationale for Using Fast-Track Process: This rulemaking is expected to be noncontroversial as the amendments are largely to clarify language and enhance the efficiency of the certification process.

Substance: Amendments allow for certification documentation and for payment of fees associated with certification to be submitted electronically. In addition, amendments add a definitions section, make several clarifying changes, and change the requirements for written examination for general mineral mining certification and electrical certification.

Issues: The primary advantage to the public and the Commonwealth is a more convenient, electronic permitting process. This process creates efficiencies for both DMME and the mineral mining industry. There are no known disadvantages.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Mineral Mining Examiners (Board) proposes to amend these regulations to allow mineral miners to file for their required certifications, pay fees and take examinations electronically. Additionally, the Board proposes several amendments for clarity, which do not change policy or requirements.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Allowing mineral miners to file for their required certifications, pay fees and take examinations electronically may moderately reduce costs through saved time and postage. To the extent that the clarifying amendments reduce confusion, these proposed changes will be beneficial as well.

Businesses and Entities Affected. The proposed amendments potentially affect the 433 mineral operations currently in the Commonwealth of Virginia. Approximately 90% of these (roughly 390) would qualify as small businesses.

Localities Particularly Affected. The proposed amendments apply to all localities, but may particularly impact areas with relatively greater mineral mining. According to the Department of Mines, Minerals and Energy, the Division of Mineral Mining has issued active permits in over 90 localities in the Commonwealth.

Projected Impact on Employment. The proposal amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments may moderately reduce costs by permitting the use of electronic submission of documents.

Small Businesses: Costs and Other Effects. The proposed amendments may moderately reduce costs by permitting the use of electronic submission of documents.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The Department of Mines, Minerals and Energy concurs with the economic impact analysis conducted by the Department of Planning and Budget.

Summary:

The amendments (i) define terms used in the regulation; (ii) make technical changes designed to allow for mineral miners to file their required certifications and pay fees electronically; and (iii) provide that applicants for general mineral miner certification and electrical certification who possess a valid master electrical license issued by the Department of Professional and Occupational Regulation are not required to take a written examination.

4VAC25-35-5. Definitions.

The following words and items when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Commencing work" means after employment but before beginning job duties.

"Department" means the Department of Mines, Minerals and Energy.

"Division" means the Division of Mineral Mining of the Department of Mines, Minerals and Energy.

"MSHA" means the federal Mine Safety and Health Administration.

Part I
General and Specific Requirements

4VAC25-35-10. Initial certification requirements.

A. Applicants shall submit:

1. An application for certification examination in a form acceptable to the division.

2. A copy Verification of all degrees required for certification and a valid first aid certificate or card or as noted in Part II, Minimum Certification Requirements (4VAC25-35-50 et seq.). When not otherwise specified, first aid cards certifications shall be issued by an organization that uses nationally recognized standards and is approved by the Division of Mineral Mining (DMM) division, e.g., American Red Cross and National Safety Council.

3. A $10 fee for each examination application received at least five working days prior to an examination. Cash will be accepted if paying in person at a department office.

4. Verification of work experience in a form acceptable to the division and documentation of equivalent work experience for approval by the division, if required for the certification. Work experience shall be verified by a company official who is knowledgeable of the experience of the applicant.

B. Applicants shall fulfill the requirements of 4VAC25-35-10 this section and accumulate the required years of experience within five years of taking the examination or start the process over including payment of fee.

C. Applicants for the general mineral miner certification shall submit a $10 processing fee with their application.

4VAC25-35-20. Examination requirements.

A. All applicants for certification shall take a written an examination except candidates for the general mineral miner certification and electrical certification applicants who hold a valid journeyman card or master electrical license issued by the Department of Professional and Occupational Regulation. Applicants for the foreman certification shall score at least 85% and applicants for other certifications shall score at least 80% on each section of the written examination. Examinations will be given in a manner specified by the division, including, but not limited to, online or written examinations.

B. If all or part of an examination is failed, the applicant must pay the examination fee and retake the failed section or sections within 90 days to continue the certification process. If a section of the examination is failed a second time, the applicant must pay the fee and retake the entire examination. If the examination is failed on the third try, the applicant must pay the fee and wait the longer of 90 days from the re-examination date or one year from the initial examination date before retaking the entire exam. After the third attempt, the application cycle starts over.

4VAC25-35-40. Renewal requirements.

A. The division will send renewal notices to the last known address of the certificate holder at least 180 days prior to the expiration of the certificate. Certified persons shall apply for renewal of certificates by submitting an application for renewal and verification of work experience in a form acceptable to the division no more than 180 days prior to the expiration of their certificate. The application shall be submitted in time to be received at least five working days prior to the date of the examination or refresher class.

B. Certified persons, except mine inspectors, who have worked in the classification for which they are certified for a cumulative minimum of 24 months in the last five years shall select one of two options to renew their certificates; either take an examination or complete a refresher class on any changes in regulations and law since the initial certification or the certificate was last renewed. No examination or class shall be required if there have been no such changes.

C. Certified persons shall take the examination described in 4VAC25-35-20 if their certificate has expired, they have not worked in the area classification for which they are certified for a cumulative minimum of 24 months in the last five years, or DMM the division has issued the individual violations that have not been corrected.

D. Successful completion of the mine inspector renewal shall suffice for renewing the mine foreman certification.

E. Applicants for renewal of certifications shall hold a valid first aid certificate or card to renew their certification.

F. Applicants shall submit a $10 fee for the examination or the refresher class which shall be received at least five working days prior to the examination or class. Cash will be accepted if paying in person at a department office.

Part II
Minimum Certification Requirements

4VAC25-35-50. Underground foreman.

A. Applicants for certification as an underground foreman shall possess five years mining experience at an underground mineral mine or equivalent work experience approved by DMM the division.

B. Applicants may be given three years credit for a surface foreman certificate or bachelor's degree in mining engineering, mining technology, civil engineering or geology, or two years credit for an associate's degree in mining technology or civil technology.

C. Applicants shall possess a valid first aid certificate which represents verifying completion of an approved first aid course.

4VAC25-35-60. Surface foreman (this certification is for a person whose job duties include overseeing blasting activities).

A. Applicants for certification as a surface foreman shall possess five years mining experience, at least one year at a surface mineral mine, or equivalent work experience approved by DMM the division.

B. Applicants may be given three years credit for a bachelor's degree in mining engineering, mining technology, civil engineering, civil technology or geology, or two years credit for an associate's degree in mining technology or civil technology.

C. Applicants shall possess a valid first aid certificate which represents verifying completion of an approved first aid course.

4VAC25-35-70. Surface foreman, open pit (not applicable to drilling and (this certification is for a person whose job duties do not include overseeing blasting activities).

A. Surface foreman, open pit applicants shall possess five years mining experience with at least one year at a surface mineral mine, or equivalent work experience approved by DMM the division.

B. Applicants may be given three years credit for a bachelor's degree in mining engineering, mining technology, civil engineering, civil technology or geology, or two years credit for an associate's degree in mining technology or civil technology.

C. Applicants shall possess a valid first aid certificate which represents verifying completion of an approved first aid course.

4VAC25-35-80. Surface blaster.

A. Surface blaster applicants shall possess one year of blasting experience on a surface mineral mine under the supervision of a certified blaster or possess equivalent work experience approved by DMM the division.

B. Applicants shall possess a valid record of three hours of training in first aid from an organization that uses nationally recognized standards or a valid record of training to meet the requirements in 30 CFR Part 48 that includes first aid certificate verifying completion of a first aid course approved by the division.

4VAC25-35-90. Underground mining blaster.

A. Underground mining blaster applicants shall possess two years of work experience in an underground mine with at least one year handling and using explosives underground or possess equivalent work experience approved by DMM the division.

B. Applicants shall possess a valid MSHA 5000-23 form showing training in first aid certificate verifying completion of a first aid course approved by the division.

4VAC25-35-100. Mineral mining electrician (electrical repairman).

A. Applicants for certification as a mineral mining electrician shall possess work experience as demonstrated by a valid journeyman or master electrical certification license issued by the Department of Professional and Occupational Regulation, Tradesmen Section or as approved by DMM the division as equivalent to that required for a journeyman certification license.

B. Applicants shall submit documentation of training or obtain training as required by 30 CFR Part 46 or 30 CFR Part 48 or provide evidence of their knowledge of safe working practices on the mine site as approved by DMM the division.

4VAC25-35-110. Mine inspector.

In addition to the requirements set forth in § 45.1-161.292:11 of the Code of Virginia, mine inspector applicants shall demonstrate knowledge and competence in those areas specified in § 45.1-161.292:12 of the Code of Virginia through the examination process. A certificate will not be issued until an applicant is employed by DMME the department.

4VAC25-35-120. General mineral miner.

A. As set forth in § 45.1-161.292:28 of the Code of Virginia, miners commencing work after January 1, 1997, shall have a general mineral miner certification. For the purposes of these regulations, "commencing work" means after employment but before beginning job duties. Persons excluded from the general mineral miner certification are those involved in delivery, office work, maintenance, service and construction work, other than the extraction and processing of minerals, who are contracted by the mine operator. Hazard training as required by 30 CFR Part 46 or 30 CFR Part 48 shall be provided to these persons.

B. Applicants shall complete certification training in first aid and mineral mining regulations and law, which is conducted by a training instructor approved by DMM the division, a certified MSHA instructor, or a certified mine foreman. Training shall include the following topics, subtopics and practical applications:

1. First aid training shall convey a knowledge of first aid practices including identification of trauma symptoms, recognition and treatment of external and internal bleeding, shock, fractures, and exposure to extreme heat or cold. Training shall include a demonstration of skills or passing a written an examination, as evidenced by the instructor certification submitted in a form acceptable to the division.

2. Law and regulation training shall convey highlights of the mineral mine safety laws of Virginia and the safety and health regulations of Virginia. Specifically, information shall be provided on miner responsibilities and accountability, certification requirements, violations, penalties, appeals and reporting violations to DMM the division. Training shall include a demonstration of skills or passing a written an examination, as evidenced by the instructor certification submitted in a form acceptable to the division.

C. The trainer will certify to the department that the training and demonstrations required by § 45.1-161.292:28 B of the Code of Virginia and this section have occurred.

D. Applicants who hold a valid first aid card or certificate as noted in 4VAC25-35-10 shall be considered to have met the first aid requirements.

E. Applicants who have completed training may commence work and shall be considered provisionally certified for up to 60 days from the date the instructor completes the training.

F. The instructor shall submit verification of certification in a form acceptable to the division and the $10 fee for each applicant who completes the training, together with a class roster of all persons who complete the training, within 30 days of the training date.

G. The mine operator shall maintain the following records for those miners required to obtain a general mineral miner certification and those who qualify for exemption, starting January 1, 1997:

1. The employee name, address, and phone number.

2. The job title, employment date and general mineral miner number if applicable.

3. The date training was completed and the instructor providing it for nonexempt employees.

4. If the employee is exempt from the requirements, the date they began working in the mineral mining industry in Virginia.