FEDERAL REGISTER: 45 FR 82084 (December 12, 1980)

DEPARTMENT OF THE INTERIOR 
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM)

30 CFR Part 850 
Training Programs for Blasters and Members of Blasting Crews and Certification Programs for Blasters  

ACTION: Final rules.  

SUMMARY: The regulations added to Chapter VII in this notice of final rulemaking establish minimal requirements
for training and certifying persons involved in blasting in surface coal mining operations, as required by the Surface
Mining Control and Reclamation Act of 1977 (the Act).  The Act requires that regulations be promulgated which
require the training, examination, and certification of persons who engage in or are directly responsible for blasting
or use of explosives in surface coal mining operations (Section 719) for the purpose of ensuring that all such blasting
is conducted by trained and competent persons (Section 515(b)(15)(D)).  Subchapter M establishes minimal
requirements for State and Federal Programs and for the Federal lands program in implementing these portions of the
Act.  

EFFECTIVE DATE: January 12, 1981.  

ADDRESSES: Director, Office of Surface Mining Reclamation and Enforcement, Department of the Interior. 
Washington, D.C. 20240, 202-343-4006.  

FOR FURTHER INFORMATION CONTACT: Dr. David R. Maneval, Assistant Director, Technical Services and
Research, Office of Surface Mining, U.S. Department of the Interior, South Building, 1951 Constitution Avenue,
N.W., Washington, D.C. 20240, (202) 343-4264.  

SUPPLEMENTARY INFORMATION: 

     Proposed rules for Subchapter M were originally published on September 18, 1978, 43 FR 41934-36. 
Reproposed rules were published in the Federal Register on June 29, 1979, (44 FR 38318) as 30 CFR, Chapter VII,
Subchapter M, Part 850.  Public hearings on the reproposed rules were held on July 31, 1979, in Washington, D.C.;
Charleston, West Virginia; Knoxville, Tennessee; Indianapolis, Indiana; Kansas City, Missouri; and Denver,
Colorado.  Thirteen people commented on the reproposed regulations at these hearings, and transcripts of testimony
were placed in the Administrative Record and processed in the same manner as all other written comment.  In
response to a specific request, the Office of Surface Mining (OSM or the Office) held one public meeting with two
industry representatives on the substance of the reproposed rules.  Advance public notice of the meeting was posted
in the Administrative Record Office, Office of Surface Mining, indicating the date, time, place, topic, and parties
involved.  The Office received 20 written comments on the reproposed regulations from individuals, organizations,
and one government agency.  

     Control mechanisms were used to ensure that all timely comments were considered or included in the
administrative record.  The preamble to these final rules contains the bases and purposes of alternatives considered
and decisions made by the Office in responding to significant comments.  The Office considered significant
comments to be those urging the adoption of viable alternatives or questioning the provisions in the reproposed
regulations, which provided reasonable rationale or justification supporting the recommendations or comments. 
Insignificant comments and those of a more general nature are included in the administrative record, but are not
discussed in the preamble  

     The Office is particularly grateful to those who took the time and effort to review the reproposed rules and
submit comments.  The comments have been most helpful in preparing the final version of this portion of OSM
regulations.  

REGULATORY ANALYSIS  

     The Final Regulatory Analysis (RA) which accompanied the permanent regulatory program of the Act, was
published in March, 1979.  The RA analyzed two issues relevant to Part 850 which were considered to have potential
economic impact.  In choosing regulatory alternatives for those issues, the Office has selected those alternatives
which were determined to be most efficient and least costly in implementing the mandate of Sections 515(b)(15)(D)
and 719 of the Act. Since the economic impacts of alternatives to be considered in implementing the final rules of
Subchapter M are not considered to be significantly different from the alternatives previously analyzed in the
published RA, the Office is of the opinion that no additional analyses of this type will be necessary.  

ENVIRONMENTAL IMPACT STATEMENT  

     The Office has determined that environmental impacts resulting from the blaster training and certification
program are not significant enough to warrant an environmental impact study.  This program is integrally related to
the blasting performance standards which were published in March of 1979 as final rules (44 FR 15404-15406,
15430-15432, March 13, 1979).  A final Environmental Impact Statement accompanied promulgation of the blasting
performance standards and was made available to the public on January 29, 1979.  

GENERAL ACCOUNTING OFFICE REVIEW  

     Under Section 201(e) of the Act (30 U.S.C. 1211(e)), OSM is considered an independent Federal regulatory
agency for purposes of 44 U.S.C. 3502 and 3512.  As a result, all of its regulations which impose recordkeeping and
reporting requirements on members of the public must be submitted to the General Accounting Office (GAO) for
clearance pursuant to its regulations (4 CFR Part 10).  

     Some sections of these regulations require the collection, submission, or retention of certain information by
States or blasters-in-charge. The purpose of GAO review is to assure that the information is obtained with a
minimum of burden on the public and that unnecessary duplication of effect in providing information is eliminated.  

     OSM has identified the following sections of these final regulations as those imposing recordkeeping and
reporting requirements: Sections 850.4(c)(1) and (7), 850.12(c), 850.14(a), (c) and (e)(1)-(3).  These sections are
therefore adopted subject to clearance by GAO, pursuant to 44 U.S.C. 3512, and will not be effective until OSM
publishes a notice of GAO clearance.  

BACKGROUND  

AUTHORITY AND BASIS  

     The purpose of Subchapter M is to implement Sections 515(b)(15)(D) and 719 of the Surface Mining
Control and Reclamation Act.  Section 515(b)(15) of the Act, as a performance standard, is applicable to all surface
coal mining operations and requires all such operations to (emphasis added) --  

(15) Insure that explosives are used only in accordance with existing State and Federal law and the regulations
promulgated by the regulatory authority, which shall include provisions to --  

     (A) Provide adequate advance written notice to local governments and residents who might be affected by the use
of such explosives by publication of the planned blasting schedule in a newspaper of general circulation in the
locality and by mailing a copy of the proposed blasting schedule to every resident living within one-half mile of the
proposed blasting site and by providing daily notice to resident/occupiers in such areas prior to blasting:  

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     (B) Maintain for a period of at least three years and make available for public inspection upon request a log
detailing the location of the blasts, the pattern and depth of the drill holes, the amount of explosives used per hole,
and the order and length of delay in the blasts;  

     (C) Limit the type of explosives and detonating equipment, the size, the timing and frequency of blasts upon the
physical conditions of the site so as to prevent (i) injury to persons, (ii) damage to public and private property
outside the permit area, (iii) adverse impacts on any underground mine, and (iv) change in the course, channel, or
availability of ground or surface water outside the permit area;  

     (D) Require that all blasting operations be conducted by trained and competent persons as certified by the
regulatory authority ;  

     (E) Provide that upon the request of a resident or owner of a man-made dwelling or structure within one-half mile
of any portion of the permitted area the applicant or permittee shall conduct a preblasting survey of such structures
and submit the survey to the regulatory authority and a copy to the resident or owner making the request.  The area of
the survey shall be decided by the regulatory authority and shall include such provisions as the Secretary shall
promulgate.  

     Section 719 of the Act directs the Secretary of Interior to promulgate regulations "requiring the training,
examination, and certification of persons engaging in or directly responsible for blasting or use of explosives in
surface coal mining operations." 30 U.S.C. 1309.  

     The legislative history of Section 719 further clarifies Congress' intent as to training and certification of
blasters:  

Persons who are responsible for use of explosives in surface mining -- the most extensive use of explosives
nationally -- should be knowledgeable about how to protect mine workers, the neighboring public and property from
the inherent dangers of the use of explosives.  This new subsection providing for the training and certification of
blasters is designed to encourage safety and minimize unnecessary damages to health and property caused by
unqualified or ill-prepared personnel engaging in blasting operations during surface strip mining.  According to
geologists, explosives manufacturers, engineers, and government officials, proper blasting technique is one of the
most significant factors in preventing fly-rock and minimizing ground vibration.  The more efficiently an explosive is
used, the less its energy dissipates into the surrounding rock and air as vibration; operators and the public alike
benefit from such maximum-fracture, minimum-vibration blasts.  

     An efficient method of controlling blasting problems would be through comprehensive training for those
responsible for the use of explosives and blasting.  Presently, very few States require the licensing of such persons. A
program should also require passing an exam on information contained in an "explosive manual" dealing with the
unique problems associated with surface coal mining and such activities near residential communities and water
supply systems.  Pennsylvania requires a 1-year training program under a "learner's permit" upon completion of a
qualified course.  123 Cong. Rec. 3830-3831 (April 29, 1977), remarks of Congressman Murphy of Pennsylvania.  

     Since one of the major purposes of the Act is to protect society and the environment from adverse effects of
surface coal mining operations (102 SMCRA), it is clear that Congress intended the blasting performance standards
in Section 515(b)(15), coupled with Section 719, to be a principal means of protecting the environment and public
health and safety from adverse effects of blasting in such operations.  Consequently, 30 CFR 816.61-816.68 and
817.61-817.68 specify limits on blasting in surface coal mining operations, based specifically on Section 515(b)(15)
of the Act.  (In this preamble, these OSM regulations are referred to as the OSM blasting standards.) The Office is of
the opinion that adherence to these standards will help to mitigate the "adverse effects" of blasting as Congress
intended to prevent.  The goal of Subchapter M is to require training, examination, and certification as necessary to
ensure that those blasting standards are consistently satisfied.  

     To summarize, Congress clearly intended blasting personnel be trained and certified; and the purpose of
such training and certification is to ensure control of the use of explosives so that persons, the environment, and
property will not be harmed or damaged.  Subchapter M is directed toward that purpose.  

WHO NEEDS TO BE CERTIFIED ?  

     In writing Federal regulations to implement these statutory requirements, the first question to be answered
was "Who needs to be certified?" In referring to those who should be trained and certified, Sections 515(b)(15)(D)
and 719 of the Act use the words "conduct," "engage in," and "directly responsible for" blasting or "use" of
explosives.  Since "engaging  in" and "use" take place only at the blast site, the Office concluded that Congress
intended only those persons who work at the blast site should be certified.  

     Additionally, some blasting standards specified by Congress in Section 515(b)(15) are not affected by work
at the blasting site.  For example, the requirement for a published schedule prior to blasting would not be part of the
"use" or "engaging in" of explosives, nor does the schedule have to do with the "proper blasting technique"
discussed in the legislative history.  Thus, OSM has reached a second conclusion: Congress intended certification as
a means to assure compliance with only those blasting performance standards which are affected by the "use" of
explosives.  

     At first, OSM proposed that all persons who use explosives or engage in blasting must be trained and
certified to ensure consistent conformity to Office blasting standards (43 FR 41934-40, September 18, 1978). 
However, after analyzing public comment on those proposed rules, the Office concluded that only a blaster-in-charge
needs to be certified to ensure consistent conformity to Office blasting standards (44 FR 38319-38321, June 29,
1979).  

     "Blaster-in-charge" is defined as a person designated to be responsible for "ensuring that blasting operations
at the blast site are conducted in compliance with the blasting standards set forth in these (OSM) regulations." (See
Sec. 850.5(b) of the final regulations below.) The Office is of the opinion that one certified, accountable person on
each blasting crew will enable the permittee to conduct or execute blasting which is controlled within the applicable
limits of 30 CFR 816.61-816.68 and 817.61-817.68.  

CERTIFIED TO DO WHAT?  

     The Office has defined a blaster-in-charge as responsible, at the blast site , for ensuring the blast is
designed, prepared, and executed in accordance with OSM blasting standards.  It would not be reasonable to assume
a person could carry out such responsibility in all situations.  For example, it is unlikely that a blaster-in-charge could
simultaneously supervise six different crews dispersed over several square miles at the same time.  Thus, the job of
the blaster-in-charge has been restricted to supervision of no more than one crew, composed of no more than 12 crew
members, at one time.  (See Sec. 850.12(a) of the final regulations below.) Drillers need not be included in the crew,
since the blaster-in-charge can inspect the blast holes, as well as the blast design, prior to loading and any redesign or
redrilling or other necessary corrections in these phases can be accomplished before loading commences.  The
blaster-in-charge does not have to be present all times, but must remain readily accessible to the crew during any
absences.  Additionally, the blaster-in-charge must be present when each shot is fired.  (See Sec. 850.12(b)(4) of the
final regulations.) The Office has, with these specifications, attempted to define the job of the blaster-in-charge who
is directly responsible for blasting.  

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     At the same time, the Office has attempted to leave this job as flexible as possible to adapt to the many
existing different methods of operations.  For example, some blasters-in-charge for small operations may do
practically all the blasting work alone -- design, drill, load, and shoot.  At the other extreme, a blaster-in-charge for a
very large operation may inherit a blast design and drilled holes and be expected only to supervise a crew of 12 
people who load the holes and put initiation systems in place.  The Office is of the opinion that the same certification
procedures will apply to both situations.  For example, in both cases, the blaster-in-charge must check the blast
design to ensure adequate and properly placed delays.  In both cases, the blaster-in-charge must check drilled holes
for such details as proper depth, spacing, water, and voids.  Although one blaster-in-charge may do the work and the
second may supervise, each must have the same knowledge to make certain that holes are properly loaded and
stemmed.  

     A second example of flexibility is the degree of continuous supervision that a blaster-in-charge must
provide.  The Office holds the blaster-in-charge responsible for "direct supervision" during blast preparation and
execution, meaning that no responsibility for supervision can be delegated. (See Sec. 850.12(b)(3) of the final
regulations.] However, the continuous actual presence of the blaster-in-charge is not required as long as the work
which takes place during any absence can be adequately checked on returning to the blast site.  (See Sec. 850.12(c)
of the final regulations.) At the same time, the Office holds the blaster-in-charge responsible for ensuring the crew
has adequate training.  (See Sec. 850.12(b)(5) of the final regulations.) Thus, an untrained or a poorly trained crew
member is going to require continual instruction and uninterrupted supervision, while a well-trained worker may
require only minimal instruction and checks at crucial stages.  

     To summarize the responsibilities of the blaster-in-charge have been clearly defined to the extent necessary
to implement the intent of the Act and to serve as the basis for certification.  The blaster-in-charge will be certified as
competent to:  

(1) Ensure that blast design and execution meet OSM blasting standards and any additional applicable State blasting
standards, and  

(2) Directly supervise blast preparation and execution at the blast site .  

     The Office cannot at this time, answer the question of "Certified to do what?" in more detail.  However,
through collection and analysis of data from working blasters, blasting supervisors, and blasting experts, the Office
will be able to determine the tasks that must be accomplished to carry out these duties of a blaster-in-charge; the
skills, knowledge, and abilities (SKA's) necessary to perform the tasks; and the level of SKA's necessary for
competence in performing such tasks.  The data analysis will also pinpoint any significant differences in job tasks at
different mining operations, such as large or small operators; East, South, or West; anthracite or bituminous. 
Collection of such data has been underway since October, 1979, and on completion, the Office will publish the
results to define more fully and precisely what the blaster-in-charge must be competent to accomplish.  

HOW CAN COMPETENCE BE MEASURED ?  

     Measurement requires an instrument.  Some of the most common instruments used to determine job
competence are education, interviews, tests, experience requirements, physical examinations, and training.  For
example, to become a policeman, a person would very likely have to be a high school graduate (education), meet
minimal physical requirements, successfully complete  specialized training, and pass some job performance tests. 
The person is allowed to work as a police officer only after all four of these requirements are met.  Each of the four
requirements is a measurement of some special competence necessary for the job of police officer, and competence
cannot be assumed until all four have been met satisfactorily.  

     It is common knowledge that many person currently working successfully in the capacity of blaster-in-
charge or in a very similar capacity have little formal education or training, proving that neither is necessary to do the
job.  Thus, the Office originally proposed a preemployment test and experience requirement as the two most relevant
and useful instruments for measuring competence necessary to do the job as a blaster-in-charge (see 43 FR 41934-
36, September 18, 1978).  A properly constructed test can measure the knowledge and ability necessary to do job
tasks; relevant experience assures familiarity with equipment and some past demonstration of basic job skills.  

WHY VALIDATE MEASURING INSTRUMENTS ?  

     If competence is to be assessed accurately and reliably, the instruments used to measure that competence
must be objective, uniform, and standardized.  Unless a standard is first defined for the instrument, unless the
instrument is constructed to measure the standard, and unless the instrument is used correctly, then it may be
measuring factors that are totally irrelevant to job performance.  For example, a preemployment test could be
measuring only the number of correct answers, or an experience requirement could be measuring only length of
employment.  

     In reviewing existing tests and experience requirements for blasters, the Office did not find existing
instruments that had been constructed to measure ability to blast in accordance with OSM blasting standards.  In fact,
there were no data to prove or disprove what existing tests measured, how well or how consistently they measured. 
Since existing tests have not been constructed to measure any clearly defined standard of competence, the Office
could not determine exactly what or how well they measure.  Thus, the Office could not use them or approve their
use in fulfilling Congress' intent that persons be assessed as competent to conduct blasting or use explosives in a
controlled and safe manner.  Consequently, new instruments had to be developed to implement Sections
515(b)(15)(D) and 719 of SMCRA.  

OTHER LEGAL REASONS FOR VALIDATION  

     There are additional legal implications in imposing or using measurements of competence as a basis for
certification, licensing, and employment.  

     In August, 1978, four Federal agencies (Equal Employment Opportunity Commission, Department of
Labor, Department of Justice, and the Civil Service Commission) issued the Uniform Guidelines on Employee
Selection Procedures (43 FR 38290-38315).  The Guidelines set forth standards of validity for tests and other
selection procedures which are used as a basis for any employment decision and are to be applied to persons subject
to Title VII of the Civil Rights Act of 1964, as amended by the Equal Opportunity Act of 1972, Executive Order
11246, or other equal employment opportunity requirements of Federal law.  The Office has assumed application of
the technical standards of validity contained in the  Guidelines to any selection procedures required by OSM under
the blaster training and certification program for three reasons:  

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(1) Title VII may impose liability on the Office if its requirements are not job-related;  

(2) Even if Title VII does not apply, OSM may be liable under the Fifth and Fourteenth Amendments to the
Constitution; and  

(3) OSM must comply with numerous Executive Orders n1 requiring equal employment opportunity.  

     n1 Executive Order No. 11478, 34 FR 12985 (1969), as amended by Executive Order No. 11590, 36 FR (1971),
reprinted at 42 U.S.C. 2000e.  See also Executive Order No. 11246, FR 12319 (1965), as amended by Executive
Order No. 11375, 32 FR 14303 (1967), reprinted at 42 U.S.C. 2000e.  

DEVELOPMENT OF A VALID TEST  

     What is the difference between a "test" and a "test which measures?" How does one distinguish between the
two?  The common characteristics that differentiate measuring instruments are to be found in their fundamental
construction and use.  

     To construct a measuring test and experience requirement, OSM began with a job analysis, which also
served as the foundation for all later steps in the process 30 CFR 816.61-68 and 817.61-68 hold the permitted
responsible for meeting all OSM blasting standards.  However, Part 850 holds the blaster-in-charge responsible only
for blasting standards that relate to activities at the blast site .  Thus, the purpose of the job analysis was two-fold: (1)
To determine what happens at the blast site, i.e., what tasks are performed there, and (2) to determine which of the
tasks affect Office blasting standards.  

     The total domain to be tested is competence to blast in accordance with OSM regulations, because that is
the extent of OSM's authority under the Act. Thus, tasks performed at the blasting site which do not affect OSM
blasting standards will not be represented on the test or in the experience requirement. As an example, any question
on the test or any experience requirement must be justified as follows:  

     OSM Standard: control peak particle velocity = task 1: use of scaled distance equation = questions 1,3,5,8  

     The proportion of items on each task covered by the test is determined by the relative importance of that
task to OSM standards.  The test will therefore be constructed to sample, in logical proportions, those skills,
knowledges, and abilities necessary to perform the identified tasks of a blaster-in-charge.  The Office has interviewed
approximately 100 working blasters, supervisors, and contract blasters in eight states to delineate the tasks performed
at the blast site.  They were asked the following questions for approximately 100 identified tasks: Do you (or
someone else) do this?  How often?  What happens if you do not do it right?  How long did it take you to learn to do
this?  Where did you learn to do it?  Each interviewee was also  asked to add any additional tasks to the list.  

     Fifteen blasting experts representing coal companies, explosives manufacturers, state and federal
government, and academia were convened to review the tasks and relate them to OSM blasting standards.  Items
were written (and illustrated) to test the knowledge, skills, and abilities necessary to perform each related task, then
reviewed by representatives from 18 affected states and the federal government.  The items were subsequently
revised and two equivalent forms of the total test were pilot tested on groups of working blasters in five states to
determine the reliability of each item and each form of the test.  A manual is being prepared, and representatives
from each affected state will be trained to ensure uniformity in testing situations.  

     This synopsis of OSM's test development efforts has traced the steps necessary to develop a valid
instrument to measure competence.  As proof of validity, the Office will have data to show that each test question or
each required element of experience is related to a skill, knowledge, or ability necessary to perform blasting in
accordance with OSM blasting standards.  This method of construction, combined with the uniform testing
procedures to be outlined in the test manual, will produce a test that measures competence, as distinguished from a
test that merely contains questions on blasting.  

SCHEDULE FOR IMPLEMENTATION OF SUBCHAPTER M  

     Regulations for this Subchapter are now final and complete except for the qualification requirements in
Secs. 850.14(a) and the experience requirements in Sec. 850.14(a) and (e)(1)(2) and (3).  As soon as validity studies
are complete, these three subsections will be reproposed, based on findings of the studies.  

     The Office will hold hearings to receive testimony on these proposed new subsections and will also invite
written comment.  After comments have been analyzed and answered, final regulations for these four subsections
will be promulgated, and Subchapter M will be complete.  

     Once the complete subchapter M is finally promulgated, States that seek primacy under the permanent
program will have an additional 6 months to prepare and submit to OSM a blaster training and certification element
for their permanent State programs.  That submission will then be reviewed and approved or disapproved according
to the procedures and schedule of 30 CFR Parts 731 and 732.  Section 850.11 entitled "Applicability" has been
added to these final rules to clarify this schedule and provide that a hearing will be held on State programs
concerning blaster training and certification.  In States where a Federal program is being established under 30 CFR
Part 736, the Secretary will implement a blaster training and certification program within six months after (1) this
complete part has been promulgated or (2) a Federal program is established, whichever is later.  For operations on
Federal lands, the blaster certification and training program will be administered as part of the Federal Lands
Program established by 30 CFR Subchapter D.  If the Federal lands are covered by a State-Federal cooperative
agreement, that agreement may be amended to enable the State to administer the blaster program on those Federal
lands.  

ESSENTIAL ELEMENTS OF STATE PROGRAMS  

     All State programs must incorporate the validated certification instruments -- examination and experience
requirements -- developed by the Office through validation studies, unless the State submits alternatives or
substitutions which conform to the criteria under 30 CFR 730.11 or 731.13.  The Office cannot approve use of
alternative or additional certification requirements unless such requirements (tests, experience requirements,
educational requirements, etc.) have been validated in accordance with the technical standards set forth in the
Uniform Guidelines for Employee Selection Procedures (43 FR 38300-38308, August 25, 1978).  

     When states propose alternative or additional certification requirements under the provision of 30 CFR
730.11 or 731.13, "more stringent" or "as stringent" will not be interpreted to mean a test or other requirement that is
"tougher" or "as tough." Rather, degrees of "stringency" depend on the relative validity and reliability of proposed
tests or experience requirements, e.g., is the test a better or an equivalent measurement of competence for a blaster-
in-charge in State X; does the test measure such competence more consistently or as consistently; and what
verification exists to prove better, more consistent, or equivalent measurement?  In other words, the proposed
alternative test could have harder questions or more questions and yet not be considered "as stringent" because there
is no proof that it measures the desired competence.  Amendments to State programs to implement Subchapter M
must contain hearing procedures to implement Sec. 850.14(f) of the final regulations.  States are free to propose any
procedures that provide essential elements of due process.  Additionally, state program amendments must contain a
table of possible offenses and penalties to implement Sec. 850.14(f)(i)-(v).  Possible offenses under Sec.
850.14(f)(ii) will be further delineated through the validity study, i.e., the specific standards which are the
responsibility of the blaster-in-charge will be determined through the study, and possible offenses under Sec.
850.14(f)(ii) should be confined to those responsibilities.  

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ANALYSIS OF COMMENTS  

     The following paragraphs contain a discussion of all substantive comments received in response to the
reproposed rules for Part 850 (Subchapter M).  In some instances, where several commenters submitted suggestions
and criticisms with regard to a particular rule, comments have been combined and answered in a discussion of all
proposed alternatives for that specific section and other affected sections.  In other cases, comments and
accompanying rationale are discussed individually.  In all instances, the Office's rationale for making or declining to
make changes is presented in response to comment.  

Section 850.1 -- Scope  

     This section defines the parameters of Part 820.  One such parameter is the establishment of "program
requirements for the training of persons to engage in and conduct blasting or to use explosives in surface coal mining
and reclamation operations."  

     One commenter suggested substitution of the word "guidelines" for "requirements" in Sec. 850.1(a), since
the Office requires no specific training to become a certified blaster.  Section 850.1(a) describes the program
requirements specified in Subchapter M.  The word "requirements" refers to the training requirements for Federal,
State and Federal lands programs ( Sec. 850.13), as  well as the requirement that all members of blasting crews be
adequately trained to perform assigned tasks ( Sec. 850.12(a)(3) and (b)(5)).  Thus, the Office declined to accept this
suggestion.  The reference in the reproposed rule to "operator" has been changed to "permittee" in order to use
terminology consistent with the Act and OSM's permanent regulations.  

Section 850.2 -- Objective  

     This section sets forth the purpose of Part 850.  One commenter suggested deletion of the word "training"
from the statement of purpose section, because the Office is requiring no specific, formal training for blasters or crew
members.  The objective stated in this Section refers to the training programs that regulatory authorities must
provide. Under Sec. 850.13, the Office is required to develop comprehensive training materials and regulatory
authorities are required to provide training programs which include development of State specific materials, delivery
of instructor training and blaster training, making training materials available, and encouragement of on-the-job
training. Since the objective of Part 850 is to establish these training programs for the purpose of ensuring that only
trained and competent persons conduct blasting, the Office is of the opinion that use of the word "training" in Sec.
850.2 is correct, and it has not been deleted.  

Section 850.4 -- Responsibilities  

     This section apportions responsibilities for training and certification programs among OSM Headquarters,
OSM Regions, and the States.  The final rule for this section has been revised in response to comments as discussed
below.  Additional editorial changes have been made to clarify the intent of the drafters and to ensure that the
respective responsibilities of the Director, Regional Directors, and States, particularly in the context of State, Federal
and Federal lands programs, are adequately spelled out.  A new Sec. 850.4(a)(4) has been added to reflect the
Office's responsibility under Parts 731 and 732 to approve or disapprove State blasting programs designed to
implement Subchapter M.  

     Commenters suggested that procedures in Sec. 850.4(a)(3) for distributing Office-developed training
materials be clarified.  One commenter proposed to have OSM reword this Section to require that the Office mail
notification to all operators when initial or updated training materials are available.  Another commenter pointed out
that operators should not obtain materials through OSM Regions, since the Regions may not make the operator
aware of additional requirements that have been imposed by individual States.  

     While these suggestions have merit, the Office is of the opinion that these are the kinds of problems best
solved through internal administrative procedures and not through regulations.  For example, a printed notice,
distributed with OSM-developed materials, could be used to inform operators that States may have additional
certification requirements not covered in such materials.  To place such procedures in the regulations would preclude
any future flexibility in solving simple administrative problems, and the Office has therefore declined to accept these
suggestions.  

     One commenter declared that, under Sec. 850.4(b)(3).  OSM should limit its monitoring of blaster training
and certification under State programs to  analyses of violations written under such programs.  This commenter is
concerned about unnecessary duplication of effort in reporting, inspections, statutory interpretation, and compliance
accomplishment.  

     The Office is of the opinion that analyses of violations alone would not be sufficient information to
determine whether States were actually complying with Subchapter M requirements.  For example, OSM will need
data about blaster training courses and instructor training to ensure States are actually providing those services, as
required by Sec. 850.13.  Additional data about numbers certified and numbers of suspensions and revocations will
be necessary to determine whether States are testing and certifying sufficient numbers of blasters, whether appeals
systems are operating adequately, etc.  Thus, the Office did not accept this limitation.  

     One commenter wanted Secs. 850.4(b)(5)(6) and (c)(5)(6) amended to require that OSM Regions and States
provide instructor training and blaster training materials to miners' representatives.  

     As reproposed under Sec. 850.4(b)(5), anyone can obtain training materials through OSM Regions. 
"Providing materials" in this section does not necessarily mean giving materials.  Rather, it means OSM Regions are
to make such materials available through purchase and provide information to anyone, upon request, as to how
materials can be obtained.  Thus, miners' representatives could obtain training materials from OSM Regions under
this Section.  

     Under reproposed Sec. 850.4(c)(5), States acting as regulatory authorities are obligated to provide such
materials only to operators.  Since the Office wishes to encourage blaster training from every source, the
commenter's suggestion has been accepted, and this Section has been reworded in the final rules to make States
acting as regulatory agencies responsible for providing training course materials to all requesters, which may include
miners' representatives.  

{82089} 
     Under reproposed Secs. 850.4(b)(6) and 850.4(c)(6), OSM Regions and States acting as RA's are required
to provide instructor training only for the purpose of assisting operators.  The permittee is responsible to ensure that
only certified blasters serve as blasters-in-charge and that blasting crew members are adequately trained ( Sec.
850.12(a)).  Thus, it is the permittee who needs trained instructors to teach courses in blasting, and the primary
purpose of instructor training is to assist operators in carrying out those responsibilities.  There is nothing in Part 850
regulations to preclude regulatory authorities' allowing persons other than operators' designees to attend instructor
training.  However, since available resources of OSM Regions and the States are bound to be limited and since
training of instructors other than those designated by operators is not considered necessary to implement the intent of
Sections 515(b)(15)(D) and 719 of the Act, the Office did not impose further obligations for instructor training in the
final rules.  

     The Office received several comments on the blaster training courses to be provided under Sec. 850.4(b)(6),
(c)(6) by regulatory authorities, as resources permit.  

     These comments prompted consideration of the following alternatives: 1.  Leave all blaster training to
operators, 2.  Require OSM Regions to provide all blaster training courses needed by operators, 3.  Leave these rules
as reproposed and require regulatory authorities to provide blaster training courses, when resources permit,
especially to employees of small operators.  The Office has adopted alternative No. 3 based on the following
rationales.  

     A commenter wanted to delete all references to blaster training. This commenter believes that blaster
training requires hands on experience, which regulatory authorities cannot provide.  He further pointed out that each
operator has a particular way of doing things, an additional reason that any blaster training would be better carried
out at the minesite.  

     These sections, as reproposed, do not preclude training by operators.  To the contrary, operators will
probably have to do much of their own training, especially in the initial stages of the program.  However, the
regulatory authority will want to certify blasters who can meet OSM blasting standards at any mine, not just a
particular mine.  OSM is developing and will make available a training course which covers all areas of the
nationwide certification test.  The State regulatory authorities will develop and make available training materials to
cover any relevant State additions or differences, and will train persons designated by operators as instructors. Thus,
operators will be assured of the opportunity to conduct a course that covers all test requirements and can add any
local requirements or subtract any portions considered superfluous.  Since the rules, as reproposed, do not preclude
hands-on training, which the commenter believes necessary, this section has not been changed in the final rules.  

     Another commenter wanted the regulations amended to require that, when the Office is the regulatory
authority, it will provide all blaster training courses needed by operators' employees.  This commenter feels that
requiring operators to perform training places an unfair monetary burden on the operator.  Also, operators will not be
able to budget accurately for blaster training because they will not know, in advance, how much training will be
needed.  

     Under Sec. 850.4(b) and (c), both the Department and the State regulatory authorities are required to assist
the permittee by making materials and instructor training available for a comprehensive blaster training course.
Permittees can acquire that course, then acquire training for their instructors, and schedule training as needed, at their
own convenience.  The Office has made no specific formal training requirements -- some blasters may need no
training, some may need training in only one or two areas, and others may need the total course.  Under the final
regulations, permittees have the flexibility to offer as much training as is needed to meet their own needs, at their
own convenience. The final rules are designed to assist the permittee in carrying out that responsibility.  The Office
is of the opinion that providing training for employees is the responsibility of the permittee; it is an ordinary expense
of any business to ensure that employees are competent to function within any legal constraints.  

Section 850.5 -- Definitions.  

     This Section defines three terms, as used in Part 850: Blaster, blaster-in-charge, and blasting crew.  

     One commenter complained that the reproposed definitions for "blaster" and "blaster-in-charge" in Sec.
850.5(a) and (b) were confusing.  In some instances both words seem to refer to the same person; in other sections of
the regulations, they seem to refer to two different people.  A second commenter asserted that the reproposed
definition for blaster-in-charge contradicts existing operations under some union contracts where the union shooter
or blaster prepares and executes the blast and the blasting supervisor, or blaster-in-charge, supervises the blast. 
Some union contracts do not allow the supervisor to perform any work on the execution of the blast.  A third
commenter pointed out that if the blaster-in-charge must "supervise" and "be responsible" for the blast, union
members under some contracts could not become blasters-in-charge.  These commenters wanted Blaster to refer to
the "union shooter" and blaster-in-charge to refer to the blasting foreman or supervisor.  

     In answer to these comments, "blaster" is defined in reproposed Sec. 850.5(a) as a person who is "certified
to prepare, execute, and supervise blasts * * *" "Blaster-in-charge" is defined in reproposed Sec. 850.5(b) as a
"certified person designated by the responsible management official * * * to be responsible for ensuring that blasting
operations * * * are conducted in compliance with the blasting standards * * *" Thus, a blaster simply means a
certified person; a blaster does not become a blaster-in-charge until designated as such by an operator.  A blasting
crew could have two, three, or more certified blasters as members, but there will be only one blaster-in-charge, who
is the certified person designated by management as responsible for ensuring the blast meets all performance
standards set forth in Sec. 816.61-68 or Sec. 817.61-68 of the permanent regulatory program.  

     Under the rules as reproposed, a blaster-in-charge could actually prepare and execute the shot alone, or do
part of the work and supervise the remaining parts, or supervise the entire process and do none of the work.  Thus,
neither the definitions in Sec. 850.5(a) and (b) nor other sections of Subchapter M contradict the situation described
by the commenter as the typical work situation for blasting under a union contract where there is a supervisor and a
"shooter." However, the rules hold the blaster-in-charge responsible for the blast and do require that the blaster-in-
charge supervise the crew.  It is possible that, under existing contracts, some union members could not become
blasters-in-charge.  However unions and management in those situations may be able to work our agreements where
the blaster-in-charge is not considered a management position.  For example, the Office is aware of some existing
contracts where responsibilities of the blaster-in-charge are rotated daily or weekly among certified blasters; and
those situations do not preclude a union member's serving as a blaster-in-charge.  Additionally, if the Office adopted
the suggestion of these commenters and required that two certified persons (a shooter and a foreman) be responsible
simultaneously, responsibility for the blast would be divided between those two persons.  Such a division would
make it impossible to hold either the shooter or the foreman responsible in the event the blast violates blasting
standards, and would therefore preclude imposition of suspension, revocation, or other penalties which are necessary
to penalize or remove incompetent, careless, or otherwise dangerous persons from this occupation.  The Office has
therefore declined to accept these comments and has not changed the final rules.  

{82090} 
     Several commenters claimed a two-tiered certification system would improve strip mine blasting, since the
"shooter" needs to be better trained, as well as the person who supervises the blast.  

     As discussed in the preamble to the reproposed rules (44 FR 38320-38321, June 29, 1979), the Office does
not consider a two tiered certification necessary or practical for several reasons.  First, the Mine Safety and Health
Administration (MSHA) requires that all mine employees have limited training in the safety hazards of blasting. 
Second, under Subchapter M, crew members do not make decisions which affect OSM blasting standards.  Third,
crew size is limited, under Subchapter M, to 12 members, a sufficiently small group that the blaster-in-charge can be
expected to instruct and supervise adequately to ensure compliance with blasting standards.  Fourth, in many mining
operations, crew members often change jobs after a short time or are absent a great deal of the time, and certification
or formal training requirements for those persons would be an ongoing, costly process.  Fifth, requiring two or more
certified persons on a crew to be simultaneously responsible for different parts of the blast would make it impossible
to determine exactly who is responsible in the event a blast violates standards.  

     Nothing in the rules precludes better training, even certification, of the shooters on blasting crews.  Under
Sec. 850.13, all regulatory authorities are required to provide programs which include assistance to operators in
training their employees and encouragement of on-the-job training and experience for potential blasters.  However,
for the five reasons cited above, the Office declines to accept the suggestions that two persons, a blaster and blaster-
in-charge, be certified and responsibility for blasting be divided between them.  

Section 850.11 -- Applicability  

     As explained above, this new section has been added in order to explain the schedule for making this
subchapter applicable to the States which seek primacy, and to both Federal programs and the Federal lands program
which the Department will implement.  

Section 850.12 -- General Program Requirements  

     This Section establishes the requirements for permittees and blasters-in-charge to maintain certain
conditions at the blast site which are necessary to ensure that a blaster-in-charge is fully in control of blasting
operations.  Such controls are necessary for the blaster-in-charge to conduct blasting in accordance with blasting
performance standards.  References in the reproposed rule to "operator" have been changed to "permittee" to be
consistent with uses of the latter term in the Act (Section 701(18)) and OSM's regulations (30 CFR 701.5).  

     One commenter objected to the requirement of Sec. 850.12(a) for the permittee to designate a blaster-in-
charge for each blast on the basis that this practice will require unnecessary records and generate tremendous
amounts of paperwork.  This commenter feels an initial designation of a blaster-in-charge for all blasting should be
sufficient.  

     As reproposed, Sec. 850.12(a) did not dictate any one form of formal designation, as long as the identity of
the blaster-in-charge for each blast is documented prior to preparation for and execution of the blast.  One blaster-in-
charge can be designated for all blasting, as long as that person meets the definition of a blaster-in-charge under Sec.
850.5(b) and is assigned the duties under Sec. 850.12(b).  The designation could be by crew -- a person is named as
blaster-in-charge for all blasts a specific crew prepares.  The operator could use location and specify a large area
within which a designated blaster-in-charge is responsible for all blasts.  This Section is not intended to require a
separate written designation of a blaster-in-charge for each blast. Accordingly, this comment prompted no change in
the final rules.  

     One commenter contended the permittee should not be held responsible, under Secs. 850.12(a) (3), (4) and
(5) for ensuring that crew members are adequately trained, for limiting the size of the crew, or for ensuring the
blaster-in-charge supervises only one crew at a time.  This commenter felt these are duties of the blaster-in-charge
and, because the permittee may not be a certified blaster, the permittee should not be responsible for these items.  

     Section 515(a) of the Act states that "Any permit issued under any approved State and Federal program
pursuant to this Act shall require that * * * operations will meet all applicable performance standards of this Act, and
such other requirements as the regulatory authority shall promulgate." One of these "performance standards" is found
in Sec. 515(b)(15)(D) which requires that "all blasting operations be conducted by trained and competent persons as
certified * * *." The rules in Part 850 have been written to implement that performance standard, and the permittee is
therefore responsible for such implementation. Thus, even if the permittee's responsibilities in question were not
spelled out under Secs. 850.12(a) (3), (4) and (5), the permittee would still be responsible to ensure these conditions
are met in blasting operations.  Removing these sections will make the permittee no less responsible, but including
them does clarify the permittee's responsibility.  Therefore, no change has been made for the final rules.  

     Numerous comments were submitted on Secs. 850.12(a)(4) and (b)(6) requiring that the size of the blasting
crew be limited to 12 members and the dispersion of any one crew be limited to one operational pit.  Based on
analysis of these comments, OSM considered the following alternatives:  

1.  Place no limits on the size of the crew;

2.  Allow more than 12 members to a crew; add a provision that an additional certified blaster may be used to assist
the blaster-in-charge if the number of crew members exceeds 12;  

3.  Retain 12 as the limit to number of crew members, but exclude drillers as part of the crew;  

4.  Place no limits on the dispersion of the crew.  Delete the words "one operational pit";  

5.  Delete the words "one operational pit" and add a provision that the blaster-in-charge must be readily accessible to
crew members at all times; and  

6.  Define one operational pit as "one operational area as defined by an MSHA legal identification number (30 CFR
41.20)," and leave that term in the regulations to limit the blaster's span of control.  

     The Office proposed limits on the size and dispersion of the blasting crew in order to define a span of
control which a blaster-in-charge could reasonably be expected to exert and still remain in compliance with the rules
contained in Part 850.  One commenter wanted no limit to the size of the crew, asserting that each blasting job differs
in size and complexity, so only the operator can determine the size of the crew.  A second commenter said that
limiting crew size compromises safety by removing flexibility (but gave no example): a third suggested crew size be
determined through validity studies; a fourth contended that drillers should be excluded because they do not need the
constant supervision of a blaster-in-charge; and a fifth commenter suggested adding to Sec. 850.12(a)(4), a provision
that the operator must assign an additional certified blaster-in-charge with larger crews.  Such an addition would
make it possible to use larger crews and avoid the necessity for waivers as required in Sec. 850.12(a)(4).  

{82091} 
     In answer to these comments, the Office is of the opinion that, without a limit on the size of crew, a blaster-
in-charge could conceivably be assigned a crew of 30, 50, 100 or more which could be an unreasonable number for
any certified person to directly supervise in accordance with Sec. 850.12(b)(3). Because the Office is eliminating the
specific limit for dispersion of the crew at any given time, the size of the crew represents the only specific limit to the
blaster-in-charge's span of control.  Other job requirements are left flexible.  For example, the crew can be dispersed
or contained.  Secondly, the continuous presence of the blaster-in-charge is not required as long as the blaster-in-
charge remains readily accessible at all times and provides the prior instruction and subsequent checks of the work
necessary to ensure conformance to OSM blasting standards.  Thirdly, the blaster-in-charge must ensure the crew has
adequate training.  

     Obviously, the blaster-in-charge will have to provide less continuous supervision to a crew that is well-
trained than to a crew whose members have little training.  In the case of the well-trained crew, the blaster-in-charge
can rely more heavily on checks of work at critical stages rather than perform continuous supervision that will be
necessary for crews that have little experience or training.  

     The Office is of the opinion that the necessary direct supervision and accountability cannot be expected
from a blaster-in-charge who supervises more than 12 crew members under such possibly varying conditions. 
Further, if a permittee believes that local circumstances or methods require a larger crew, he can apply to the
regulatory authority for a waiver of the restriction on crew size (under Sec. 850.12(a)(4)), provided the permittee can
ensure adequate direct supervision by the blaster-in-charge.  The Office believes that the flexibility provided in Sec.
850.12(a)(4) is sufficient for industry needs.  

     Finally, adding certified blasters to assist the blaster-in-charge with larger crews would mean delegation of
some of the responsibilities, as defined under Sec. 850.12(b), which belong to the blaster-in-charge.  Such delegation
would result in a lack of accountability because it would be impossible to determine which person -- the second
certified blaster or the  blaster-in-charge -- is responsible for blasting violations.  

     For the reasons cited above, the Office rejected these comments on crew size, and the limit of 12 crew
members remains in Secs. 850.5, 850.12 (a)(4) and (b)(6) as a final rule.  

     However, the Office agrees with one commenter who asserted that drillers need not be included as part of
the crew.  In many operations, according to this commenter, drillers are supervised by a drilling supervisor and the
drillers work well ahead of the loading crew.  

     The Office agrees with the contention that the blaster-in-charge can inspect inherited drilled blasting holes
and make any adjustments prior to loading that are needed to ensure OSM blasting standards will be met.  On the
other hand, the Office does believe it good safety practice to have routine communication between drillers and the
blaster-in-charge to ensure timely awareness by the blaster-in-charge of water, voids, or other potential hazards.
Agreement with this commenter did not result in a change from the reproposed rules, since the rules have not
specified that drillers will or will not be counted as crew members.  

     Commenters were quite concerned about the proposal to limit location of the crew to one operational pit. 
They pointed out that operational pit is too restrictive in some cases and not restrictive at all in other situations. One
operational pit may, in some cases, be larger than one or two mines even when using the MSHA definition from 43
CFR 41.20.  However, commenters proposed no substitute provision to limit, by location, the span of control of the
blaster-in-charge.  They did give two examples of how crews are dispersed when at work -- sometimes with one
blaster-in-charge for every three-person crew, with the entire crew working on the same shot in the same location;
sometimes with one blaster-in-charge for an eight-person crew (counting drillers) simultaneously working on two or
three different blasts.  Thus, the only necessity for limiting location seems to be that the blaster-in-charge be readily
accessible to the crew, even during temporary absences, and be present when the blast is detonated (ensuring a last-
minute check on wiring, circuits, etc.).  

     In the preamble to the reproposed rules, OSM stated that a blaster-in-charge need not be present at every
moment during the preparation of a blast (44 FR 38325).  For example, the work of drillers can be better checked for
accuracy after holes are drilled.  In the same preamble, direct supervision ( Sec. 850.12(b)(3)) was interpreted to
mean supervising, instructing, and checking the work of crew members without intervening persons (44 FR 39325). 
As long as those three duties can be adequately performed to ensure the blast will not violate standards, actual
presence of the blaster-in-charge with the crew at all times is not necessary.  

     After consideration and analysis of comments, the Office decided that it is not necessary to limit the
dispersion of the crew, as long as crew size is limited to 12 members and the requirement for direct supervision by
the blaster-in-charge is retained.  Thus, the final rules contain the words "supervised by a properly certified blaster-
in-charge who is continuously readily accessible to crew members" in Sec. 850.12(a)(4); and the phrase "at one
operational pit" has been deleted in Secs. 850.5(c), 850.12(a)(4), and  850.12(b)(6).  Ready accessibility can be
given a more restrictive meaning by regulatory authorities if local conditions warrant closer supervision than will
result from this change.  

     Commenters were most concerned that the dates in reproposed Sec. 850.12(b) would not allow enough time
to train, test, and retest blasters and comply with the requirement for full implementation. Commenters suggested an
additional time of up to 12 months be allowed, after OSM approval of a State program, to train, test, and certify all
blasters.  

     After analysis of the comments, OSM is in agreement with the commenters that full implementation of this
program will require more time than allowed in the reproposed rules.  Consequently, all dates and time limits have
been removed from Secs. 850.4(b)(2)(6)(7) and 850.12(b)(1).  Section 850.11, "Applicability," has been added, with
provisions to give States 6 months, beginning from the date of promulgation of complete and final Federal
regulations for Subchapter M, to submit a blaster training and certification program to OSM.  

{82092} 
     Additionally, OSM is now developing programmed training materials which will teach all skills,
knowledge, and abilities necessary to function as a blaster-in-charge.  The Office anticipates the training course will
be complete before OSM promulgates complete regulations for Subchapter M, and the course will immediately be
given to states for their use.  OSM will also train state personnel is use of these materials.  If a state anticipates that a
year will be needed to train, test, or retest blasters, the state can use OSM's course or one of its own to begin to train
blasters even before OSM has complete and final regulations for Subchapter M.  By beginning training at that point,
the State could have well over a year to train potential blasters-in-charge before certification must occur.  

     As for testing, the OSM certification test will also be available months before OSM can promulgate
complete and final regulations for Subchapter M.  The Office will train State personnel in use of the test, and a state
which wants to begin testing can do so before submission or approval of its program, providing the state can ensure
test security.  Although the State could not issue certificates before its certification program is approved by OSM, the
State could record test scores for use at a later date.  Thus, any state can now begin its training and/or testing efforts
well in advance (12 months or more) of actual certification deadlines, and the commenter's suggestion that 12 months
or more be allowed to train, test, and retest after approval of a state program has not been accepted.  

     One commenter objected to Sec. 850.12(b)(2) which holds the blaster-in-charge responsible to ensure that
blast design and execution meet the blasting performance standards.  The commenter asserted that OSM is assuming
a division of duties that does not exist in all operations.  For example, in some mines the blast design is prepared by
an engineer, then provided to the blasting foreman to implement.  Further, the commenter believed the regulations
imply a legal liability to the blaster-in-charge which, in fact, accrues to the permittee.  He commented that the
blaster-in-charge cannot be held legally responsible for satisfying OSM blasting criteria, and enforcement should not
be directed toward the blaster-in-charge.  

     The rules, as reproposed, were not based on any fixed divisions of labor between the blaster-in-charge and
other employees who might perform various tasks in preparation of a blast.  A blasting engineer could design the
blast, but the blaster-in-charge would still be responsible for checking the design to ensure the resulting blast would
not violate OSM blasting standards. As examples, the blaster-in-charge would check the pounds per delay, the
amount of stemming, etc., to ensure that resulting peak particle velocity, airblast, and flyrock would not exceed OSM
standards.  

     As explained in the discussion of Sec. 850.12(a)(3), (4) and (5) above, the permittee is legally responsible
for ensuring that all performance standards are met during surface mining and reclamation operations.  For example,
if there is a violation of OSM blasting standards, the permittee may be fined.  The blaster-in-charge is also
responsible, however, to ensure blasting in accordance with the standards; and a very serious violation of those
standards by the blaster-in-charge could result in a penalty of suspension or revocation of certification.  The
permittee is liable in terms of fines, suspension of operations, or cessation of operations; a blaster-in-charge is liable
only to the extent of losing certification.  If the blaster-in-charge is not held responsible to blast competently,
incompetent or careless blasters-in-charge would remain certified, and certification would lose its meaning.  The
Office has therefore declined to adopt this comment.  

     Three commenters requested that OSM specify in Sec. 850.12(b)(5) minimal training requirements for crew
members.  Additionally, one commenter suggested that OSM require the operator to post the names of all crew
members, along with completed training for each member.  These commenters felt that crew members might not get
all the training needed to comply with OSM regulations through MSHA's required training, and posting names and
training would assure some control over training of crews.  

     OSM has not left training of crew members entirely to MSHA.  In the previous preamble, the Office pointed
out that MSHA is responsible to provide training which teaches the health and safety aspects of the blasting
environment (44 FR 38320-21, June 29, 1979).  Because crew members make none of the decisions that affect OSM
blasting standards, the Office believes that the overall requirements of Part 850 are sufficient to ensure that crew
members can and will perform assigned tasks without resulting violations of OSM blasting standards.  Because OSM
does not consider the requirement that all crew members have a specific training course necessary for implementing
blasting performance standards, such a requirement has not been added to the final rules.  

     One commenter contended that OSM exceeded its authority in Sec. 850.12(c) by proposing to regulate the
way the shot is handled at the blast site.  According to this commenter, OSM's only concern should be the
environmental effects of the shot, only MSHA has the authority to regulate preparation and execution of the blast,
and OSM cannot specify the duties of the blaster-in-charge without encroaching on that authority.  

     This comment ignores the requirements of Sections 515(b)(15) and 719 concerning the Secretary's
responsibility to regulate the use of explosives and certify persons who carry out blasting.  The essence of Sec.
850.12(c) is to make the blaster-in-charge responsible for meeting OSM blasting standards, regardless of the fact that
the blaster-in-charge may have crew members who perform part  or all of the physical work on the blast.  This
Section helps to clarify the Office's identification of the blaster-in-charge as the person who needs to be trained and
certified to conduct or be directly responsible for blasting in accordance with Sections 515(b)(15) and 719 of the
Act.  Unless the responsibilities of the blaster-in-charge are clearly defined, as in Sec. 850.12(c), a regulatory
authority cannot certify persons as competent to carry out such responsibilities in blasting or use of explosives for the
purpose of preventing adverse effects on public safety and the environment.  Nor could the RA suspend or revoke
certificates for failure to meet those responsibilities in averting harm to the environment and public health and safety. 


     Additionally, Section 515(b)(15) of the Act states, as a general performance standard applicable to all
surface coal mining and reclamation operations, that the operation shall be required to "insure that explosives are
used only in accordance with existing State and Federal law." Federal law would include MSHA regulations.  To
require that the blaster-in-charge be responsible for specific duties which will ensure compliance with MSHA
regulations at the blast site is not inconsistent with, nor duplicative of, MSHA's authority to regulate the health and
safety aspects of blasting.  

     Third, handling or preparation and execution can also affect the environmental effects of the shot.  For
example, OSM could certify a blaster-in-charge to be responsible for peak particle velocity limits, but the regulations
could fail to specify that the blaster-in-charge must supervise or instruct the crew.  If a crew member then overloaded
a blast hole and violated the peak particle velocity limit, the blaster-in-charge could not be held responsible.  In such
a hypothetical situation, no one would be responsible except the permittee.  If OSM did not regulate the handling of
the shot, it would not fulfill Congress' intent that a certified person be directly responsible for blasting to ensure
proper control of blasting in the surface operations of coal mines.  

{82093} 
     For these reasons, the Office chose not to accept this commenter's suggestion to delete the specific
responsibilities of the blaster-in-charge contained in Sec. 850.12(c), and that section becomes a final rule without
change.  

Section 850.13 -- Required elements of training programs.  

     This Section lists minimal requirements that State and Federal regulatory authorities must meet in providing
training for potential certified blasters.  Other comments concerning this section also related to Sec. 850.4(b) and (c)
and are discussed above in that portion of the preamble.  

     One commenter proposed that the subject of potential structural damage due to blasting should be included
in the blaster training course being developed by OSM under Sec. 850.13(b).  

     Content of the OSM-developed training course will be based on the results of the ongoing job analysis
(validation study).  Content cannot be justified on the basis of individual opinions.  Through the job analysis, all
skills, knowledges, and abilities necessary to perform as a blaster-in-charge will be identified.  If knowledge of
structural damage is necessary for such performance, as demonstrated through the job analysis, it will be included in
the course, as well as the test.  OSM cannot yet identify this subject area as  a part of the training course, because the
job analysis is not yet complete, and an accurate, complete listing of objects for training is not yet available.  

Section 850.14 -- Required elements of certification programs.  

     This Section sets forth minimal requirements of State and Federal programs in examining, certifying, and
recertifying applicants.  The Section also encompasses rules about penalties, hearings, and appeals.  Some comments
discussed the nationwide test in the context of sections other than Sec. 850.14. Since such comments concerning the
substance of the testing requirements relate to Sec. 850.14, they have been grouped and answered under this Section,
regardless of the specific section to which the commenter referred.  

     Several commenters expressed concern about the content and methodology of the nationwide test in Sec.
850.14(a).  One commenter expressed the opinion that demonstrated competence through a practical examination
would be a more dependable measure of competence than a written test, since many blasters have limited formal
education and may not do well on written tests, although they are very competent in their work.  This commenter
requested that "trained and competent" persons be changed to "persons who demonstrate competence."  

     As stated in the preamble to the reproposed rules, a valid test would not use content or methodology that
tests skills such as reading and writing that are irrelevant to blasting competence.  The test cannot be totally
nonwritten since, among other things, a blaster-in-charge must be responsible for blasting records.  However, the test
will be designed and administered so as to test verbal skills only to the extent that such skills are necessary to
perform as a blaster-in-charge.  "Trained and competent" in Sec. 850.2 is used to describe certified persons.  If
people can pass the test and meet the experience requirements, both of which measure competence, the Office
assumes they have been trained.  In other words, they have learned, either through formal training, on-the-job
training, or experience, the combination of skills and knowledges necessary to perform the duties of a blaster-in-
charge.  Thus, the Office declined to accept the suggestion to change the wording "trained and competent" in Sec.
850.2.  

     Commenters also objected to nationwide certification requirements in Sec. 850.14(a), especially an
examination to measure competence to be developed by OSM and used by all regulatory authorities.  These
comments prompted the consideration of three alternatives:  

1.  Delete the requirement that all applicants for blaster certification be required to pass a national qualifying
examination established by the Office.  Leave all certification requirements to the States; OSM to review and
approve such proposed requirements in State programs as to adequacy;  

2.  Exempt those States which have existing testing programs from required use of the national examination;  

3.  Retain the requirement, as written in the reproposed rules, that all applicants for blaster certification must pass a
national qualifying examination.  

     Alternative No. 3 was adopted for the reasons indicated in the following discussion of comments.  

     Some commenters asserted that imposition of nationwide certification requirements exceeds the Secretary's
authority granted under SMCRA and suggested Subchapter M be deleted in its entirety.  Some commenters
contended that a national certification program goes beyond what Congress intended in Section 719 and violates
unspecified states' rights.  One commenter supported this argument with the contention that provision for a national
examination contradicts the intent of Section 503 of the Act and asserted that the national examination represents a
degree of exclusive jurisdiction which is being withheld from the States.  

     To quote from Section 719: "In accordance with this Act, the Secretary of the Interior (or the approved
State regulatory authority as provided for in Section 503 of this Act) shall promulgate regulations requiring the
training, examination, and certification * * *" If the commenter is referring to the parenthetical in Section 719, the
Office interprets the word "or" to indicate the Secretary must promulgate rules to implement this Section in States
that do not seek or achieve primacy, and States that do achieve primacy must promulgate rules in accordance with
Section 503 of SMCRA.  However, the Office does not believe the parenthetical precludes the Secretary's choice to
establish a nationwide training and certification program.  

     The Secretary's promulgation of regulations in this area is consistent with Sections 102(a) and 503 of the
Act.  Section 102(a) states the first purpose of the Act to "establish a nationwide program to protect society and the
environment from the adverse effects of surface coal mining operations." Under Section 201(c)(2), the Secretary is
authorized to issue regulations necessary to carry out the purpose and provisions of the Act.  Section 503(a)(7)
specifically requires, as a criterion of State programs, that they meet the purposes of the Act through "rules and
regulations consistent with regulations issued by the Secretary pursuant to the Act."  

     The Secretary's broad power to issue regulations pursuant to the Act was recently upheld in the U.S. District
Court.  In Re Permanent Surface Mining Litigation, Civil No. 79-1144, February 20, 1980; reversed, In Re
Permanent Surface Mining Regulation Litigation, U.S. Court of Appeals, No. 80-1308, July 10, 1980; vacated, In Re
Permanent Surface Mining Regulation Litigation, U.S. Court of Appeals (en banc), August 25, 1980.  In answer to
the argument that the Secretary lacks a statutory basis to require state program consistency with permanent
regulations, the Court found the Act to contain "several unequivocal grants of rulemaking authority vested in the
Secretary * * *" The Court interpreted Sections 701(25), 503(a)(7), and 201(c)(2) of SMCRA as granting such
authority.  

{82094} 
     Additionally, these regulations are necessary to implement Congress' intent in enacting Section 719.  As
explained above, the legislative history of that section demonstrates Congress' desire for a national blaster
certification program because the surface mining industry engages in "the most extensive use of explosives
nationally," yet "very few states require the licensing" of blasters.  123 Congressional Record 3830-3831 (April 29,
1977).  As a solution to "controlling blasting problems." Congress adopted Section 719's requirements for
"comprehensive training for those responsible for the use of explosives  and blasting." Ibid.  

     To summarize, the Office is of the opinion that the legislative history indicates Congress' intent for a
national program to implement Section 719, and the Act provides statutory authority to the Secretary to promulgate
such a program.  Thus, the nationwide requirements remain in the final rules for Subchapter M.  

     Other commenters declared that the nationwide certification requirements duplicate State certification
programs and suggested that OSM should exempt existing State programs from such requirements.  

     The Office did not find an existing test used by any State or by the Mine Health and Safety Administration
which measures blasting competence and which has been validated in accordance with acceptable standards and
constructed through accepted psychometric techniques.  OSM could not, therefore, accept existing tests as
instruments that could predictably measure the competence necessary for certification as required under SMCRA. 
Unless a test is constructed and used in accordance with acceptable standards of the psychological profession, it
cannot be regarded as a measuring instrument.  It may measure something, but no one can prove what it measures or
how well it measures.  The intent of the Act in Sections 515(b)(15)(D) and 719 is to ensure that only competent
persons are allowed to blast in surface mines.  Thus, the Office cannot use or approve use of unvalidated tests for
blaster certification because such tests may not actually measure the competence necessary to blast in accordance
with OSM standards.  

     Under these circumstances, the Office could not leave the responsibility for development of valid
certification tests to individual States.  Validation studies necessary to develop valid test instruments are time-
consuming and costly.  All affected States would have been required to perform essentially the same study, involving
years of duplicative effort and expenditures of millions of dollars and delaying implementation of a certification
program as required by the Act.  

     One commenter expressed concern that content of a nationwide test would not be applicable in all states,
since blasting techniques and practices will vary widely among locations.  To ensure the national test is valid for use
in all States, OSM's validation study will include data collected from a representative sample of blasters; a panel of
blasting experts and supervisors, representative of industry, government and academia; and representatives from each
affected State.  Each affected State has been asked to review test content to ensure that State differences are
reflected.  If significant differences exist, the test will be constructed in modular form and applicants will be required
to complete only those modules which are relevant to blasting in their particular state.  

     One commenter asserted that the Guidelines on Employee Selection Procedures (43 FR 38289-38309,
August 25, 1978) are not applicable to blaster certification requirements and could not be used as a rationale for
requiring validation of certification requirements or for imposing a valid national examination on the basis that no
other valid instrument exists.  As explained above, OSM believes that it is required to follow the Guidelines and
develop a job-related test because of the Office's potential liability under (1) Title  VII of the Civil Rights Act, (2)
the Fifth and Fourteenth Amendments to the Constitution, and (3) Executive Orders requiring equal employment
opportunity.  

     One commenter pointed out that the Guidelines on Employee Selection Procedures recognize the fact that
many combinations of questions (tests) and/or experience can qualify as valid -- that is, there is not just one valid
examination.  A national examination, said this commenter, deprives the States of the opportunity to vary testing of
basic knowledge, even though all such variations could be valid under the Guidelines.  

     The Office agrees with the commenter in that certification tests other than the national test could be valid. 
If a State submits, as a part of a proposed State program, a test accompanied by supporting data to show the same
degree of validity and reliability for its specific population as that demonstrated for the national test, such a State test
could be approved by OSM for use in that State under the state window regulations of Sec. 731.13.  Proof of
equivalent degrees of validity and reliability and proof that use of the proposed alternate test is necessary because of
local requirements would meet the standards of this regulation.  "No less stringent" in this situation does not mean a
tougher test; rather, it means an instrument which measures competence to blast in accordance with OSM blasting
standards just as comprehensively, just as accurately, and just as reliably as the OSM-developed test.  

     One commenter requested OSM reinsert in Sec. 850.14(a) the 2-year experience requirement for
certification, since use of the phrase "types and length of experience required by the Office" does not set forth a
uniform minimal requirement.  Additionally, the commenter suggested OSM specify that comparable blasting
experience in other industries would be credited toward the required 2 years.  

     In the preamble to the reproposed rules, the Office explained that the types and length of experience
required for certification would be determined through validity studies, since individual opinions do not establish
sufficient job-relatedness of such a requirement (44 FR 38322, June 29, 1979). The studies will also determine
whether experience in jobs other than blasting in surface mines can be considered as qualifying experience.  As soon
as the studies are complete, the Office will propose specific experience requirements in revisions to Secs. 850.14(a),
(e)(1), (2) and (3).  After public comment on these new proposals, final rules on this subject will be promulgated. 
OSM must await results of the validity studies before determining what length and types of experience indicate
competence; therefore this commenter's suggestions cannot be adopted at this time.  

     Two commenters wanted the Office to add a grandfather clause to this Section, exempting blasters already
certified by States.  Commenters felt that such an exemption would prevent an unmanageable onslaught of applicants
to State agencies during the initial stages of implementation.  Additionally, these commenters are concerned that
many competent blasters excel in their work, but cannot pass a test.  If these blasters are not exempted from the test,
commenters believe they will be unnecessarily deprived of the opportunity to work as a blaster-in-charge.  

{82095} 
     As explained in the preamble to the reproposed rules, the test under development by OSM will not test
irrelevant job skills (44 FR 38322, June 29, 1977).  For example reading and writing, except as those skills are
required in performance as a blaster-in-charge, will not be tested.  Thus, if a blaster is competent in necessary job
skills, he or she should be able to pass the test, regardless of educational background.  With the new time limits
allowed States under Sec. 850.11 in the final rules, the onslaught anticipated by these commenters can be averted.  

     Also, OSM will be studying equivalent content validity between existing State tests and the OSM-
developed test.  If sufficient equivalent validity exists, OSM will propose that test scores or partial scores on State
tests be accepted in lieu of retesting.  The Office cannot predict at this time any such equivalence, but will be specific
about which State scores, if any, are acceptable, when each State's blaster certification program is reviewed and
public comment is requested.  Based on the above rationales, the Office did not accede to the request to add a
grandfather clause to this Section.  

     One commenter maintained the Office should dictate reciprocity among all regulatory authorities in
recognizing successful completion of the examination.  Certified blasters should not have to retake the same
examination simply because they want to work in more than one state.  

     The Office agrees with the rationale that certified blasters should not be required to retake the same
examination solely for the purpose of working in a mine under the jurisdiction of a regulatory authority other than
the issuing RA.  However, OSM cannot specify required reciprocity until validity studies are complete, since the
studies may find regional or State differences which must be reflected in test content.  To the extent that studies
dictate uniform content, the Office will accept this comment and, on completion of the studies, will propose such
reciprocity as the studies justify.  

     Several commenters wanted to add to Sec. 850.14(a), (b) and (h) the requirement that specific test and
experience requirements for certification, as well as specific penalties for specific violations, will be subject to notice
and public hearing requirements before becoming a part of the final rules.  

     As previously explained, the Office intends to provide notice and opportunity for public hearing during the
rulemaking on the nationwide testing, experience, recertification, and retesting provisions which will be proposed
once the validity studies are complete.  At that time, the public will have an opportunity to comment on both blaster
testing and experience requirements, as well as penalties.  Section 850.11 has also been added to specify that a public
hearing will be held on each State blaster certification program so that the public can comment while those programs
are being reviewed by OSM.  

     One commenter objected to the mandatory 30-day wait in Sec. 850.14(d) for applicants to retake the
examination after notification of failure.  Section 850.14(c) allows 30 days after the applicant has been tested for
notification of success or failure.  The commenter pointed out that these combined time limits could result in a
person's being unable to work for three months.  

     The Office does not feel that these limits are unduly harsh.  The 30-day period for notification of failure in
Sec. 850.14(c) is the maximum time  allowed for the regulatory authority (RA) to notify applicants.  Notification
could take place before the 30 days have elapsed, depending on administrative workload of the RA at any given
time.  Also, a State/RA can provide for a shorter time limit under a State program.  

     The 30-day limit in Sec. 850.14(d) means that an unsuccessful applicant must wait 30 days to apply for
reexamination.  This provision has two advantages: 1.  Any successful applicant will be notified as to which sections
of the test were failed. Thirty days from that time will allow for adequate preparation, so that a second failure will be
less likely; 2.  The 30-day wait will prevent applicants' attempts to beat the test simply by retaking the examination
instead of trying to correct deficiencies in knowledge or skills.  

     Moreover, the temporarily unsuccessful applicant for certification is not prevented, under Part 850, from
doing any work; the person is only precluded from working as a blaster-in-charge.  It is doubtful that any person
need wait idly for the next testing opportunity.  For example, any aspirant who meets the experience requirements to
be certified as a blaster-in-charge (and who needs only to pass the test to be certified) could certainly perform as a
blasting crew member during the period between testing opportunities.  For these reasons, OSM did not alter the time
limit in Sec. 850.14(d) for retesting.  

     One commenter objected to the requirement in Sec. 850.14(e) that a blaster's certificate include a
photograph of the person certified for the following reasons: 1.  Coalfields are spread out geographically in some
states and it will be very expensive both to set up a number of offices accessible to blasters so that photographs can
be made and for blasters to travel long distances to a central place to be photographed; 2.  This requirement makes it
impossible for a blaster to renew a certificate by mail and time off work to renew certificates will be expensive to the
blaster and/or operator; and 3.  The photograph is not needed because one State has been licensing blasters for seven
years, has never required to photo and has had no problem with persons attempting to switch or change their
licenses.  

     In answer to this commenter, the Office offers the following rationales for retaining the requirement for a
photograph: 1.  Many states already require a photograph for blaster's certificates, and representatives from only one
State have complained of the cost; 2.  The picture need not be retaken every year and the State can require an initial
photo, not to be retaken for 3, 5, or even 10 years; 3.  The State can set up temporary facilities for applying, testing,
and photographing during the initial stages of program implementation if applicants are dispersed over large
geographical areas; and 4. Because the blaster-in-charge bears considerable responsibility for protecting the public
safety and minimizing adverse environmental effects, obtaining false certification must be discouraged as much as
possible; and photographs are a proven and effective deterrent to impersonation, particularly on a minesite where one
could not expect or demand that blasters would always carry corroborating documents which contain a photograph. 
For these reasons, the Office has retained in the final rules the requirement for a photograph on the blaster's
certificate.  

     Several commenters objected to the recertification requirements reproposed in Sec. 850.14(e)(1), (2) and
(3).  Analysis of these comments led to consideration of three alternatives: 1.  Delete all requirements for 
recertification; 2.  Require only those who do not work as blasters (during the 3-year period) be recertified; and 3. 
Leave these sections as reproposed -- require recertification every 3 years based on experience and every 6 years
based on reexamination and experience, as determined by validity studies.  If validity studies indicate different
requirements are more valid, propose the recertification requirements so indicated.  

{82096} 
     Commenters gave the following reasons for deleting all requirements for recertification; 1.  Retesting is not
required of other professions such as doctors and lawyers; 2.  OSM can use notices of violation (NOV's) and
cessation orders (CO's) to weed out incompetent blasters; 3.  OSM can use suspensions and revocations to weed out
incompetent blasters; 4.  Changes in state-of-the-art happen only once in twenty years; even then, such changes are
thoroughly introduced by suppliers before blasters use anything new; 5.  The 3-year recertification requirement has
no data to support it; and 6.  Changes in regulations are published and hearings are held so that blasters would be
informed of any changes in regulations and do not need retesting to keep abreast of changes.  Additionally, those
commenters who would exempt working blasters from recertification argue that the certified blaster who continually
works in blasting does not need to be recertified because he or she will not forget knowledges or lose skills needed to
blast competently.  

     In answer to these comments OSM has provided for the need for recertification every 3 years to be
determined by validity studies now underway. If the studies show that no experience is needed to retain competence,
this rule will be reproposed, based on findings of the study.  If the study shows no need for at least a minimal
reexamination every 6 years to retain competence, that rule will be reproposed, based on findings of the study. 
These studies will be completed and any necessary changes made before Subchapter M is used as a basis for any
State or Federal programs.  

     The requirement for recertification every three years, based on experience, and a reexamination plus
experience every 6 years, does not mean that blasters must repeat the entire initial process of certification.
Certificates can, for instance, be renewed by mail at the end of three years if the only requirement for renewal is
proof of minimal experience during those three years.  The reexamination at the end of six years (if any
reexamination is proved necessary as a result of the validity study) should include only those relevant changes that
have occurred since initial examination.  The study may well conclude that no reexamination is necessary -- for
example, it could determine that the distribution of a small pamphlet containing information about such changes may
be all that is needed, in addition to the experience required during 3-year intervals.  

     Commenters suggested that experienced blasters need not be recertified at the end of three years.  However,
unless all blasters apply for recertification at the end of 3 years, the regulatory authority has no way of knowing
which certified blasters have had minimal experience during the 3-year period.  Unless there is a check on experience
at the end of three years, those who have not had the required experience could also retain the certificate of
competence and continue to blast.  

     Commenters suggested notices of violations (NOV's) and cessation orders (CO's) could be used to weed out
incompetent blasters.  However, NOV's  and CO's are not written to blasters-in-charge -- they are written to
permittees.  It is true that the certificate of the blaster-in-charge could be suspended or revoked due to blasting
violations which are also written up on NOV's and CO's.  It is also true that some incompetent blasters may be
"weeded out" by this process.  The suspension/revocation system, however, serves merely as a spot check on
competence, i.e., one cannot assume or certify initial or continuing competence on the sole basis of lack of
violation/suspension/revocations.  

     For these reasons, the Office has decided to retain Sec. 850.14(e)(1)(2) and (3) as reproposed, and no
change has been made at the present time.  

     However, if these requirements for recertification are not supported by the ongoing study, new revised rules
in accordance with the findings of the study will be proposed for Subchapter M.  

     One commenter objected to the requirement of Sec. 850.14(e)(4) that blasters-in-charge carry their
certificates while on duty.  The reproposed rule for this section stated that blasters-in-charge must, upon request,
show the certificate to any authorized representative of the RA or the Office.  This commenter requested the rules be
changed to require only that the blaster-in-charge provide evidence of identification within a "reasonable period of
time." The commenter felt that it was unfair for the operator to be penalized if the blaster-in-charge is cited in case of
a lost certificate.  The commenter believes that the RA's records of certification should be the only evidence required
for valid certification.  

     The Office is of the opinion that the rule, as written, is necessary to facilitate inspections and assure
inspectors that the person actually serving as blaster-in-charge is the same person who has been certified.  Holding
the blaster-in-charge accountable for displaying the certificate while on duty is no more than is asked of automobile
drivers, chauffeurs, FBI agents, police officers, inspectors, or any number of other groups licensed for particular
duties that involve questions of responsibility or safety.  The operator's liability in this instance is no different than in
situations where employees do not wear the required safety apparel such as goggles, hardhat, or steel-toed shoes.  

     It is true that certificates may be lost and violations thus incurred.  However it is unreasonable to expect that
inspectors should have to check with the RA every time they want to determine whether a certified blaster-in-charge
is actually present.  Moreover, where one State gives reciprocity to another State's certification, inspectors would not
have access to certification records and could not verify identity unless the blaster-in-charge carries his certificate.  

     In cases of lost certificates where no other blasting violations have occurred and a certified blaster-in-charge
is in the process of replacing a lost certificate, the notices of violation might not carry an assessment unless the "lost
certificate" was habitual for the blaster in question.  

     This comment was not accepted for the reasons cited above, and the requirement that certificates be
exhibited to representatives of the RA or  Office, upon request, has been made a part of the final rules  

     One commenter requested that the provision of Sec. 850.14(f)(1)(i) on "noncompliance with any blasting-
related order" be changed to "noncompliance with any blasting plan approved by the regulatory authority" as a
reason for possible suspension or revocation.  This commenter believed that the language, as reproposed, is too
broad, because the orders of some inspectors could be erroneous or even dangerous, since inspectors are not
qualified blasters. Failure to comply with faulty orders should not subject a blaster to suspension or revocation of
his/her certificate.  

     The Office believes that the blaster is protected from unwarranted suspension or revocation through the
provisions of Sec. 850.14(f)(1) and (2) for a hearing to take place before revocation or suspension can occur (except
for temporary suspension where there is a finding of threat to public safety or the environment).  If an inspector has
given a faulty order, that determination would be made at the hearing before a certificate has been suspended.
Revocation cannot take place, under the rules, before a hearing is granted. Suspension can precede the hearing only
in cases where the RA is of the opinion that continued work by the blaster in question represents a threat of danger to
the public or the environment.  Situations where these circumstances converge -- faulty orders, a judgment of threat,
and immediate suspension before a hearing -- are bound to be exceedingly rare.  Under Sec. 850.14(f)(3), the blaster
would be entitled to a hearing within 5 days of request for relief, at which time the certificate could be restored, and
under Sec. 850.14(f)(2), the regulatory authority must hold a hearing within 20 days of a notice of suspension.  

{82097} 
     Blasting-related orders will refer to specific local circumstances and more specific aspects of blasting than
those contained in the blasting plan. For example, the blasting plan does not address rules of Part 850, such as size of
crew, continuous ready accessibility of the blaster-in-charge to the crew, etc.  However, inspectors are directed to see
that all such aspects of blasting regulations are obeyed, and all these rules directly or indirectly affect the impacts of
blasting on public safety and/or the environment.  If an inspector's order is dangerous or erroneous, as discussed
above, the blaster has an opportunity to make that point at a hearing preventing suspension or revocation.  

     In summary, the Office has not accepted this commenter's suggestion because refusal to obey a blasting-
related order represents legitimate grounds for possible suspension or revocation, and because the blaster-in-charge
is adequately protected from unwarranted penalties through the provision for a hearing to precede actual penalty.  

     One commenter objected to Sec. 850.14(f) and (ii) because in the commenter's opinion, one small violation
could result in revocation without the right to a hearing before revocation takes place.  The commenter suggested an
addition to this section to provide that suspension or revocation could not be effective until a hearing had been held
and proof of violation provided by the regulatory authority (RA).  

     This commenter has misread or misinterpreted the rules as reproposed.  The wording of reproposed Sec.
850.14 (f) and (h) provide for the same protections sought by the commenter.  Section 850.14(f)(1) provides
opportunity for a hearing from the RA before suspension or revocation can take place,  except for "threat to public
safety or the environment" under Sec. 850.14(f)(2).  

     Under the reproposed rules, revocation cannot take place without prior opportunity for a hearing.  In cases
where suspension takes place for reasons of threat to public safety and before a hearing, the blaster-in-charge must
have a hearing within 20 days from the date the penalty is imposed and is entitled to a hearing within 5 days if
requested.  The words "may * * * revoke" under Sec. 850.14(f)(1) mean that (1) adequate proof of guilt must be
presented and extenuating circumstances must be considered, and (2) the violation must be serious enough.  Under
Sec. 850.14(h), the RA determines the "length of suspension or revocation and the severity of any other penalties for
offenses which provoke such actions." Once the complete and final rules for this part are published, all RA's will
have to promulgate a table of possible penalties for anticipated possible violations as a part of their programs before
those programs are implemented.  When a State blaster program is submitted for approval by the Office, such a table
must provide for equitable penalties, based on the comparative seriousness of specific single violations or recidivism,
and must provide due process by informing the blaster-in-charge of potential penalties before any violations have
occurred for which those penalties could be imposed.  

     To answer the commenter's suggestion that no suspension be allowed without a prior hearing, the Office is
of the opinion that provision must be made for immediate suspension in situations where it is obvious that the
blaster-in-charge cannot or will not control blasting.  The Office considers blasting not controlled to the limits
specified in 30 CFR 816.61-68 or 817.61-68 to be a potential threat to public safety, the environment, or property
outside the permit area.  Situations where these limits will very likely be continually or severely violated if a
particular blaster-in-charge continues work are situations of threat.  For example, a violation of Sec. 850.14(f)(1)(iii)
where certification was obtained under false pretenses may constitute an immediate threat where an unqualified
person would be performing as a blaster-in-charge. A second example of threat would be a violation under Sec.
850.14(f)(1)(iv) where a blaster-in-charge was obviously under the influence of alcohol while working.  A third
example would be a violation under Sec. 850.14(f)(1)(ii) for repeated violations, obviously demonstrating lack of
ability or lack of conscientiousness by the blaster-in-charge in controlling blasting within the specified limits.  

     To summarize, the rules, as reproposed, provide for exactly the safeguards which the commenter wants to
ensure with the exception of cases that involve immediate threat.  For the reasons outlined in the preceding
paragraphs, the Office believes that immediate suspension is necessary in situations where threat is imminent. 
Additionally, the Office has now added Sec. 850.14(f)(3) to the rules which provides for a hearing within 5 days, if
requested by the suspended blaster-in-charge.  Thus, Secs. 850.14(f)(1)(i) and (ii) remain unchanged in the final
rules.  

     One commenter wanted the word "current" inserted before "addiction" in Sec. 850.14(f)(1)(iv) as a reason
for suspension or revocation.  The commenter pointed out that this rule, as reproposed, could be interpreted to
preclude rehabilitated addicts from certification.  

     The Office agrees that proof of past addiction may not be job-related and is not justification for denying
certification.  Thus, the rule has been changed to read "proof of current addiction."  

     Two commenters objected to the 20-day time limit of Sec. 850.14(f)(2) within which a blaster must have
opportunity for a hearing in the event a certificate is suspended for reasons of threat to public safety or the
environment.  

     One commenter suggested that the limit be shortened to days because the 20-day period imposes a penalty
prior to trial which is unusually harsh, based solely on the judgment of someone who may or may not have any
practical experience in the use of explosives.  

     A second commenter contended that a threat to public safety or the environment will many times be a
judgment call by the inspector.  The blaster should, therefore, be given an immediate hearing.  Otherwise, he or she
will be out of work for 3 weeks after receiving notice of suspension.  

     As this rule was reproposed, the 20-day provision is a maximum limit, not a set time for a blaster to wait for
a hearing following immediate suspension because of imminent threat.  However, a 3-day or 24-hour maximum limit
is not administratively feasible.  The nature of the violation could require some preparation for the hearing -- such as
compilation and analysis of blasting records -- for both the blaster and RA. In other cases, an administrative law
judge or hearing officer must be scheduled to hear the case. In some cases, the blaster might have to travel overnight
to attend the hearing. Any of these of other factors could preclude the 3-day or 24-hour limit. However, the
commenters do make a point in that a 20-day wait could conceivably impose undue hardship in some cases of
immediate suspension.  The Office has therefore inserted Sec. 850.14(f)(3) into the rules, which provides that, at the
request of the suspended blaster-in-charge, the Regulatory Authority must hold a hearing and issue a decision within
5 days of receipt of such a request.  This "5-day rule" parallels the relief offered operators in the event of cessation
orders under Section 525 of the Act and although this rule will be difficult to administer, it will not be impossible as
would a 24-hour or 3-day limit.  

{82098} 
     One commenter contended that OSM should add to Sec. 850.14 a provision that a blaster-in-charge be
reimbursed for lost wages in the event a certificate is revoked but later reinstated after a hearing or an appeal.  Since
loss to the blaster-in-charge under such circumstances is the result of the RA's mistake, this commenter felt it only
fair that the RA should have to make up for any lost wages.  

     The Office has declined to make this addition to the final rules. Revocation cannot take place before a
hearing, and suspension also requires a prior hearing, except in cases where continued work by the blaster-in-charge
is found to be a threat to public safety or the environment.  The requirement for a hearing prior to all suspensions
except emergencies should prevent inspectors' mistakes from wrongfully depriving blasters of wages.  Additionally,
the Office has added Sec. 850.14(f)(3) in the final rules which provides for a hearing and decision within 5 days at
the request of the suspended blaster-in-charge.  In any event there is legal recourse through the courts.  These are the
same checks and balances provided under any regulatory program and should result in due process for blasters-in-
charge who are cited for violations.  

REGULATION DRAFTERS  

     This portion of OSM's permanent regulatory program has been drafted by Jean A. McIntyre.  Assistant
Director David R. Maneval has been responsible for supervision of its preparation and content.  

Dated: December 5, 1980.  
Joan Davenport,  Assistant Secretary .  

1.  Title 30 CFR is amended to add Subchapter M consisting of Part 850 as follows:  

SUBCHAPTER M -- TRAINING PROGRAMS FOR BLASTERS AND MEMBERS OF BLASTING CREWS,
AND CERTIFICATION PROGRAMS FOR BLASTERS  

PART 850 -- PROGRAMS  

Sec.  
850.1          Scope.  
850.2          Objective.  
850.4          Responsibilities.  
850.5          Definitions.  
850.11         Applicability.  
850.12         General program requirements.  
850.13         Required elements for training programs.  
850.14         Required elements for certification programs.  

Authority: Secs., 102, 201, 501(b), 503, 504, 515, 516, 523, 701, and 719 of Pub. L. 95-87, 91 Stat. 448, 449, 468,
471, 472, 486, 490, 495, 496, 497, 516, 517, 518, and 526 (30 U.S.C. 1202, 1211, 1251(b), 1253, 1254, 1265, 1266,
1273, 1291, and 1309).  

Sec. 850.1 Scope.  

     This part establishes program requirements for --  

(a) The training of persons to engage in and conduct blasting or to use explosives in surface coal mining and
reclamation operations;  

(b) The examination and certification of persons engaging in and directly responsible for blasting or the use of
explosives in surface coal mining and reclamation operations; and  

(c) Conditions and restrictions for permittees' use of certified blasters and blasting crews in surface coal mining and
reclamation operations.  

Sec. 850.2 Objective.  

     The objective of this part is to establish training and certification programs which ensure that all blasts in
surface coal mining and reclamation operations are designed, prepared, executed, and supervised by trained and
competent persons who meet the requirements of these regulations as they relate to blasting in surface coal mining
and reclamation operations.  

Sec. 850.4 Responsibilities.  

(a) The Director of the Office is responsible for --  
     (1) Establishing technically valid national examinations for blaster certification and recertification which cover all
skills, knowledge, and abilities necessary to meet the requirements of Secs. 816.61-68, 817.61-68, and this Part 850
regarding blasting and the use of explosives in surface coal mining and reclamation operations.  The Director also
establishes requirements governing the administration and security of those examinations;  
     (2) Establishing valid national experience requirements for blaster certification and recertification;  
     (3) Developing training course materials which cover all skills, knowledge, and abilities to meet the requirements
of Secs. 780.13, 816.61-68, 817.61-68 and this Part 850; making such materials available upon request; and updating
such materials as Federal regulations change and as significant developments in the state-of-the-art occur; and  
     (4) Approving or disapproving State program amendments to implement this part.  

(b) Each Regional Director of the Office is responsible for --  
     (1) Reviewing State programs for blaster training, examination, certification, revocation, suspension, and appeals; 
     (2) Examining, certifying, and recertifying applicants, and revoking or suspending blaster certification in a State
where a Federal program has been implemented and performing those functions for blasters who work on Federal
lands, in States where no State-Federal cooperative agreement is in effect;  
     (3) Monitoring approved State blaster training, examination, certification, revocation, suspension, and appeals
programs to ensure compliance with the requirements of this part;  
     (4) Collecting any data required by the Director regarding blaster training, examination, certification, revocation,
suspension, and appeals programs conducted in support of the Act;  
     (5) Providing Office-developed training course materials, upon request;  
     (6) Assisting permittees by providing instructor training for potential instructors and, when resources permit,
conducting blaster training  courses in a State where a Federal program has been implemented or where no State-
Federal cooperative agreement is in effect;  
     (7) Ensuring that any person who performs as blaster-in-charge in surface coal mining and reclamation operations
in a State where a Federal program has been implemented or where no State-Federal cooperative agreement is in
effect is properly certified.  

(c) Each State is responsible for --  
     (1) Preparing and submitting to the Regional Director, under 30 CFR Parts 731 and 732, a State program for
examining, certifying, revoking and suspending certification, appealing relocating or suspension; and promoting and
providing training which meets the requirements of this part;  
     (2) Requiring that any person who performs as blaster-in-charge in surface coal mining and reclamation
operations in the State be certified in accordance with an approved State blaster program;  
     (3) Administering the State certification program for blasters as approved by the Secretary;  
     (4) Developing training course materials which cover any additional State-imposed requirements for blaster
certification;  
     (5) Providing, upon request, training course materials whose mastery ensures a blaster's ability to comply with the
requirements of applicable State and Federal laws.  
{82099} 
     (6) Assisting permittees by conducting instructor training for potential instructors of blasting courses and, where
resources permit, conducting blaster training courses, and  
     (7) Collecting, maintaining and providing the Office with date on training, test results, and other information the
Office may require with respect to a State program.  

Sec. 850.5 Definitions.  

     As used in this part --  

(a) Blaster means a person who is certified to prepare, execute, and supervise blasts at the blast site in surface coal
mining and reclamation operations.  

(b) Blaster-in-charge means a properly certified person designated by the responsible management official of the
permittee to be responsible for ensuring that blasting operations at the blast site are conducted in compliance with the
blasting standards set forth in these regulations.  

(c) Blasting crew means 12 or fewer persons engaged in preparation for and execution of a blast under the direct
supervision of a blaster-in-charge.  

Sec. 850.11 Applicability.  

     The requirements of this part apply to, and must be implemented by, the regulatory authority for all State,
Federal and Federal lands programs. Each State regulatory authority must submit to the Secretary a blaster training
and certification program within six months after this complete Part has been finally promulgated.  A public hearing
will be held on all State programs submitted to the Secretary to implement this part.  

Sec. 850.12 General program requirements.  

(a) The permittee shall --  
     (1) Designate a blaster-in-charge for each blast to be detonated in surface coal mining and reclamation operations; 
     (2) Ensure that the designated blaster-in-charge is properly certified in accordance with the time requirements
established in 30 CFR 850.11.  
     (3) Ensure that all employees who perform blasting tasks under the supervision of a blaster-in-charge have
adequate training in compliance with the standards of these regulations and any additional applicable State
regulations;  
     (4) Limit the size of a blasting crew to 12 or fewer persons, supervised by a properly certified blaster-in-charge
who is continuously readily accessible to crew members in preparing and executing a blast.  The regulatory authority
may in individual cases, approve a larger blasting crew, due to unusual circumstances or mining methods. 
Permission to use a larger blasting crew may be granted by the regulatory authority only if the permittee ensures that
the blaster-in-charge can provide adequate direct supervision to crew members and remain in control of blast design,
preparation, and execution so that blasting complies with Office and applicable State regulations; and  
     (5) Ensure that a blaster-in-charge supervises no more than one crew at any given time.  
     (6) The blaster-in-charge shall --  
     (1) Be certified by the appropriate regulatory authority for all blasting operations conducted under a State,
Federal or Federal lands program;  
     (2) Ensure that blast design and execution meet Office standards prescribed in 30 CFR 816.61-68 or
817.61-68, this Part 850, and any applicable additional State standards;  
     (3) Directly supervise blast preparation and execution at the blast site to ensure that such standards are met;  
     (4) Be present at the site when the blast is detonated;  
     (5) Ensure that all members of blasting crews under his or her supervision have adequate training to
perform assigned tasks in compliance with the standards prescribed in applicable State and Federal regulations; and  
     (6) Limit to 12 or fewer the number of persons to be supervised at any given time in preparing and
executing blasts at the blast site in surface coal mining and reclamation operations.  Permission to use a larger
blasting crew can be granted by the regulatory authority under Sec. 850.12(a)(4).  

(c) The blaster-in-charge may authorize members of the blasting crew to perform general blasting operations, load
and unload explosives at the blasting site, prepare explosives for use in blasting, transport explosives at or near the
jobsite, load explosives into drill holes, and stem or otherwise prepare explosives for detonation.  However, each of
these assigned duties shall be performed only after instructions from and under the direct supervision of the blaster-
in-charge.  The blaster-in-charge retains full responsibility for all blasting and use of explosives, including, but not
limited to, keeping blasting logs and records, supervising the blasting-related activities of the workers in his or her,
charge, and ensuring all persons under his or her supervision have the necessary training to perform safely their
assigned duties in accordance with applicable State and Federal blasting regulations.  

Sec. 850.13 Required elements of training programs.  

(a) Training course materials which cover all blasting regulations in 30 CFR Chapter VII and other relevant Federal
regulations shall be developed and made available by the Office for use in State, Federal and Federal lands
programs.  

(b) The regulatory authority shall provide for a blaster training program which includes --  
     (1) Development of training course materials which cover all applicable State regulations for blasting in surface
coal mining operations;  
     (2) Conducting instructor training courses;  
     (3) Making available, upon request, Office-developed and State-developed blaster training course materials; and  
     (4) Conducting, as resources permit, blaster training courses, especially for employees of small operators.  

(c) Training courses for persons who want to be certified as blasters shall include all skills, knowledge, and abilities
determined through validity studies as necessary for performance as a blaster-in-charge.  

(d) The regulatory authority shall encourage on-the-job training and experience for potential blasters in a variety of
the tasks listed in 30 CFR 850.12(c), so that potential blasters can subsequently meet the experience requirements for
blaster certification.  

Sec. 850.14 Required elements of certification programs.  

(a) Each applicant for blaster certification shall be required to pass a national qualifying examination established by
the Office and shall present acceptable proof of types and length of experience required by the Office.  

(b) Examinations may vary among State programs, depending on State requirements that are in addition to the
requirements imposed by the Office. However, the standardized national examination established by the Office shall
be included in each State examination and shall include questions designed to test all skills, knowledge and abilities
determined through validity studies as necessary for performance as a blaster-in-charge.  

(c) Each applicant for blaster's certification shall receive written, notification from the regulatory authority, within 30
days of examination, as to the applicant's certification status.  

{82100} 
(d) Applicants who fail to qualify in the examination may reapply for examination by submitting a new application to
the examining authority after a 30-day period from notification of failure.  

(e) Terms and conditions of certification:  
     (1) Certification shall be for a period of 3 years and shall be made only to a person who passes the required Office
and State examinations and presents acceptable proof of required experience.  The certificate shall include the
person's name, address, photograph, and signature.  
     (2) Each certified blaster shall apply for recertification every 3 years to the regulatory authority.  To be
recertified, persons shall meet any experience requirements imposed by the Office or State.  
     (3) Each certified blaster who fails to obtain recertification at the end of 3 years shall be required to apply for
reexamination and shall meet experience standards.  In any event, reexamination is required every 6 years.  
     (4) Each certified blaster shall, upon request, exhibit his or her blaster's certificate to any duly authorized
representative of the regulatory authority or the Office.  
     (5) Certification shall not be reassigned or transferred.  

(f) Suspension or revocation:  
     (1) Under a Federal program or Federal lands program, the Secretary may suspend or revoke a blaster's certificate
following notice and an opportunity for a hearing pursuant to 43 CFR Part 4, Subchapter L.  A State regulatory
authority may suspend or revoke a certificate in accordance with hearing procedures provided in the approved State
plan.  The regulatory authority may revoke a blaster's certificate for any of the following reasons:  
     (i) Noncompliance with any blasting-related order of the regulatory authority.  
     (ii) Violation of the provision of any Federal blasting or explosives law or regulation that affects
implementation of blasting regulations in 30 CFR Chapter VII.  
     (iii) Proof that false information was willfully given or misrepresentation willfully made to obtain the
certification.  
     (iv) Proof of current addiction to alcohol, narcotics, or other dangerous drugs, or proof that the certified
blaster has used such substances in the workplace.  
     (v) Proof that the certified blaster participated in assigning or transferring certification to a person other
than the person to whom the regulatory authority issued it.  
     (2) In any instance where the regulatory authority considers continued blasting by the blaster involved to be a
threat to public safety or the environment, certification shall be suspended until completion of a hearing. In such
event, a hearing shall be conducted within 20 days of the notice of suspension.  
     (3) In the event of immediate suspension, the suspended blaster-in-charge may, at any time, request immediate
relief from the regulatory authority.  Within 5 days after receipt of such a request, the regulatory authority must hold
a hearing and issue a decision.  

(g) Any certified blaster whose certification has been revoked because of violation of any applicable Federal or State
blasting or explosives law or regulation shall be required to pass a qualifying examination before being recertified.  

(h) The length of suspension or revocation and the severity of any other penalties for offenses which provoke such
actions shall be determined by the regulatory authority.  

[FR Doc. 80-38601 Filed 12-11-80, 8:45 am]  
BILLING CODE 4310-05-M