[Federal Register Volume 70, Number 191 (Tuesday, October 4, 2005)]
[Proposed Rules]
[Pages 57808-57811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19846]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 46, 48, 50, 56, 57, 75, and 77

RIN 1219-AB41


Use of or Impairment From Alcohol and Other Drugs on Mine 
Property

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

ACTION: Advance notice of proposed rulemaking; notice of public 
meetings; close of record.

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SUMMARY: Because of the inherent dangers present in all mining 
environments, we are considering regulatory and non-regulatory 
approaches to address the risks and hazards to miner safety from the 
use of or impairment from alcohol and other drugs, and are soliciting 
information from the public to help determine how to proceed.

DATES: Comments to this advance notice of proposed rulemaking must be 
received by November 27, 2005.
    We will hold seven public meetings to gather additional 
information. The dates and locations are listed in the Public Meetings 
section under SUPPLEMENTARY INFORMATION. Individuals or organizations 
wishing to make presentations for the record are asked to submit a 
request to us at least five days prior to the meeting date; however, 
those who do not submit a request in advance will be given an 
opportunity to speak.

ADDRESSES: Comments must include Regulation Identifier Number (RIN) 
1219-AB41 and may be submitted by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail to [email protected]. Include RIN 1219-AB41 
in the subject line of the message.
     Fax: (202) 693-9441.
     Regular Mail or Hand Delivery: MSHA, Office of Standards, 
Regulations, and Variances, 1100 Wilson Blvd., Room 2350, Arlington, 
Virginia 22209-3939.
     Access to Docket: We post all comments received without 
change, including any personal information provided, at http://www.msha.gov under the ``Rules & Regs'' link. The public docket may be 
viewed at our Office of Standards, Regulations, and Variances, 1100 
Wilson Blvd., Room 2349, Arlington, Virginia.
     We maintain a listserve on our Web site that enables 
subscribers to receive e-mail notification when we publish rulemaking 
documents in the Federal Register. To subscribe to the listserve, visit 
our site at http://www.msha.gov/subscriptions/subscribe.aspx.

FOR FURTHER INFORMATION CONTACT: Rebecca J. Smith, Acting Director, 
Office of Standards, Regulations, and Variances at 202-693-9440 
(voice), 202-693-9441 (fax), or [email protected] (e-mail).

Outline of ANPRM

    This outline will assist you in finding information in the 
SUPPLEMENTARY INFORMATION section of this document.

Supplementary Information

I. Public Meetings
II. Introduction
III. Background
IV. Issues
    A. Nature, Extent, and Impact of the Problem
    B. Prohibited Substances and Impaired Miners
    C. Training
    D. Inquiries Following Accidents
    E. Drug-Free Workplace Programs
    F. Costs and Benefits

SUPPLEMENTARY INFORMATION:

I. Public Meetings

    The public meetings will begin at 9 a.m. and end after the last 
speaker testifies (in any event not later than 5 p.m.) on the following 
dates:

------------------------------------------------------------------------
            Date                    Location                Phone
------------------------------------------------------------------------
October 24, 2005............  Little America        801-363-6781
                               Hotel, 500 S Main
                               Street, Salt Lake
                               City, UT 84101.
October 26, 2005............  Hyatt Regency St.     800-233-1234
                               Louis, 1 St. Louis
                               Union Station, St.
                               Louis, MO 63103.
October 28, 2005............  Sheraton Birmingham,  205-324-5000
                               2101 Richard
                               Arrington Jr. Blvd.
                               North, Birmingham,
                               AL 35203.
October 31, 2005............  Sheraton Suites       859-268-0060
                               Lexington, 2601
                               Richmond Rd.,
                               Lexington, KY 40506.
November 2, 2005............  Marriott Town         304-345-6500
                               Center, 200 Lee St.
                               East, Charleston,
                               WV 25301.
November 4, 2005............  Hyatt Regency         800 233-1234
                               Pittsburgh Int'l
                               Airport, 1111
                               Airport Blvd.,
                               Pittsburgh, PA
                               15231.
November 8, 2005............  MSHA Conference Room  202 693-9440
                               25th Floor, 1100
                               Wilson Blvd.,
                               Arlington, VA 22209.
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    The meetings will begin with an opening statement from us, followed 
by an opportunity for members of the public to make oral presentations 
to our panel. You do not have to make a written request to speak. You 
will speak in the order that you sign in. Any unallotted time will be 
made available for persons making same-day requests. At the discretion 
of our presiding official, the time allocated to speakers for your 
presentation may be limited. We will accept written comments and data 
for the record from any interested party, including those not 
presenting oral statements. The comment period will close on November 
27, 2005.
    The meetings will be conducted in an informal manner. We may ask 
questions of you. Although formal rules of evidence or cross 
examination will not apply, we may exercise discretion to ensure the 
orderly progress of the meeting and may exclude irrelevant or unduly 
repetitious material and questions.
    A verbatim transcript of the meetings will be included in the 
rulemaking record. Copies of this transcript will be available to the 
public, and can be accessed at http://www.msha.gov.

II. Introduction

    Given that our accident investigations do not routinely include an 
inquiry into the use of alcohol or other drugs as a contributing 
factor, there may be many instances in which alcohol or other drugs 
were involved in accidents and are not reported to us or that we do not 
uncover during investigations. Our preliminary review of our fatal and 
non-fatal mine accident records revealed a number of instances in which 
alcohol or other drugs or drug paraphernalia were found or reported, or 
in which the post-accident toxicology screen revealed the presence of 
alcohol or other drugs.

[[Page 57809]]

    We are concerned that miners' use of and impairment from alcohol 
and other drugs can create considerable (but preventable) risks to 
miner safety. To the extent that use and abuse of alcohol and other 
drugs by miners is prevalent, it reflects problems in the community in 
general and the labor force as a whole.
    The Department of Health and Human Services, Substance Abuse and 
Mental Health Services Administration's (SAMHSA) 2003 National Survey 
on Drug Use and Health (formerly the National Household Survey on Drug 
Abuse) shows that these community problems are also found in the labor 
force. The survey reports that of 16.7 million illicit drug users age 
18 or older, 12.4 million (74.3 percent) were employed either full or 
part time. In addition, 14.9 million (77 percent) of the 19.4 million 
adults, age 18 or older, characterized with abuse of or dependence on 
alcohol or drugs were employed. The Bureau of Labor Statistics analyzed 
1998 data from its Census of Fatal Occupational Injuries and estimated 
that 19 percent of the nation's workforce who die on the job test 
positive for alcohol and other drugs.\1\ Similarly, a 1993 analysis of 
toxicology data on injured workers' blood alcohol concentration 
estimated that ten percent of fatal work injuries and five percent of 
non-fatal work injuries overall involved acute alcohol impairment.\2\
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    \1\ Weber, W., and Cox, C. ``Work-Related Fatal Injuries in 
1998,'' Compensations and Working Conditions, Spring 2001, pp. 27-
29.
    \2\ Zwerling, C. ``Current practice and Experience in Drug and 
Alcohol Testing.'' Bulletin on Narcotics, vol. 45 (1993), pp. 155-
196.
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    SAMHSA's 2000 National Household Survey on Drug Abuse analyzes 
alcohol and other drug use and abuse by industry sector. Notably, the 
construction and mining industries have the highest percentage of 
workers who reported current illicit drug use \3\ or have an alcohol 
dependence disorder or alcohol abuse disorder. Nearly one in seven 
workers in these industries report having a serious alcohol problem. 
The report shows the following rates of use for the mining and 
construction industries: 15.7% past month heavy alcohol use; 12.3% past 
month any illicit drug use; 10.9% past year dependence or abuse of 
alcohol; and 3.6% past year dependence or abuse of illicit drugs.
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    \3\ The survey defined current illicit drug use as the use of 
marijuana, cocaine, heroin, hallucinogens, inhalants or non-medical 
use of prescription-type pain relievers, tranquilizers, stimulants, 
or sedatives in the past 30 days.
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    Using drugs or alcohol can impair a miner's coordination and 
judgment significantly at a time when he or she needs to be alert, 
aware, and capable of performing complicated tasks. Even prescription 
medications may affect a miner's perceptions and reaction time. Mining 
is a complicated and hazardous occupation, and a clear focus on the 
work at hand is a crucial component of workplace safety. Alcohol- or 
drug-impaired miners endanger themselves as well as their co-workers.
    A number of mine operators recognize this problem, and require 
applicants for employment to pass a pre-employment drug screening. At a 
summit held on December 18, 2004, some mine operators stated that a 
substantial number of job applicants are unable to pass the initial 
drug screen.

III. Background

    Since the late 1980s, the federal government has implemented a 
number of programs aimed at reducing the use of alcohol and other drugs 
in the workplace. The Anti-Drug Abuse Act of 1986 (Pub. L. 99-570), 
among other things, directed the Secretary of Labor to initiate efforts 
to address the issue. Subsequently, Executive Order 12564, Drug-Free 
Federal Workplace, established federal drug-free workplaces, making it 
a condition of employment for all federal employees to refrain from 
using illegal drugs. The Drug-Free Workplace Act of 1988, 41 U.S.C. 
701, et seq., requires Federal contractors and grantees to have drug-
free workplaces, and the Drug-Free Workplace Act of 1998, 15 U.S.C. 
654, established grant programs that assist small businesses in 
developing drug-free workplace programs. To protect public safety, the 
Omnibus Transportation Employee Testing Act of 1991, Public Law 102-
143, requires transportation industry employers to conduct drug and 
alcohol testing for employees in ``safety-sensitive'' positions, 
creating a model that many non-regulated employers follow.
    In support of the President's goal of lowering the rate of illegal 
drug use, the Department of Labor's (DOL) Working Partners for an 
Alcohol- and Drug-Free Workplace (Working Partners) public outreach 
campaign raises awareness about the impact of alcohol and other drug 
use on businesses and encourages and assists employers to implement 
drug-free workplace programs that protect worker safety and health and 
respect worker rights. DOL's Occupational Safety and Health 
Administration (OSHA) recognizes that drug and alcohol impaired workers 
constitute a safety hazard and strongly supports comprehensive drug-
free workforce programs, especially in certain workplace environments, 
such as those involving safety-sensitive duties like operating 
machinery.\4\ Over the past year and a half, OSHA has implemented a 
number of strategies in support of this statement. For example, OSHA 
along with MSHA and DOL's Working Partners program, formed an alliance 
with four international labor unions \5\ focused exclusively on 
improving worker health and safety through drug-free workplace 
programs, and an OSHA/National Federation of Independent Business 
alliance agreement specifically includes promoting drug-free workplaces 
as a goal. OSHA also developed a Web page on workplace substance abuse, 
and OSHA and DOL staff have presented at conferences and written 
articles for publications attracting occupational safety and health 
professionals.
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    \4\ OSHA, ``Safety and Health Topics, Workplace Substance 
Abuse,'' http://www.osha.gov/SLTC/substanceabuse.
    \5\ International Union of Operating Engineers; United 
Brotherhood of Carpenters and Joiners of America; International 
Association of Bridge, Structural Steel, Ornamental and Reinforcing 
Iron Workers; and International Brotherhood of Boilermakers, Iron 
Ship Builders, Blacksmiths, Forgers and Helpers.
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    We currently address the presence and use of intoxicating beverages 
and narcotics at metal and nonmetal mines. Sections 56.20001 and 
57.20001 of 30 CFR state:

    Intoxicating beverages and narcotics shall not be permitted or 
used in or around mines. Persons under the influence of alcohol or 
narcotics shall not be permitted on the job.

    Between January 1, 2000 and June 30, 2005, penalties were assessed 
for 75 violations of Sec.  56.20001 and for three violations of Sec.  
57.20001. Our regulations contain no similar requirement for coal 
mines.
    We have initiated a number of education and outreach efforts to 
raise awareness in the mining industry of the safety hazards stemming 
from the use of alcohol and other drugs. We, in partnership with the 
Joseph A. Holmes Safety Association, established the Professional Miner 
Program to recognize miners who have worked injury-free for at least 
three years. Miners who have been recognized as Professional Miners 
sign a pledge which includes a commitment to ``work to ensure a safe, 
healthy, and alcohol and drug-free workplace.'' To date, approximately 
15,500 miners have taken this pledge.
    We participate in the drug-free work place alliance mentioned above 
to provide union members and the construction industry with 
information, guidance and access to training resources that will help 
them understand the benefits of drug-free

[[Page 57810]]

workplace programs and protect employee health and safety. Although 
this alliance focuses on the construction industry, a substantial 
number of the union members work on mine property.
    On December 8, 2004, we co-sponsored with the states of Kentucky, 
Virginia and West Virginia, a one-day summit for individuals involved 
with coal mining operations and activities in the Southern Appalachian 
region. The summit brought together industry, labor, state and federal 
government officials, and public health experts to share information, 
expertise, and experience in dealing with the use of or impairment from 
alcohol and other drugs on mine property. At the summit, industry 
representatives expressed concerns about the problems related to the 
use of drugs and alcohol in mines. Several coal mine operators 
described the effectiveness of their drug-free workplace programs and 
expressed their concern that such programs were not universal in the 
industry.
    Along with Virginia and West Virginia, we are participating in 
Kentucky's Mine Substance Abuse Task Force. The task force currently 
meets monthly to examine options for eliminating the use of or 
impairment from alcohol and other drugs on mine property.
    During the first four months of 2005, in our annual Spring Thaw 
meetings held by each of the 51 field offices of our metal and nonmetal 
program area, we included presentations and discussion of drug and 
alcohol abuse to raise awareness and provide information to mine 
operators.
    Our State Grants Program awards federal grants to 49 states and the 
Navajo Nation. Our 2006 Solicitation for Grant Applications, sent out 
in July, 2005, requests that applicants include substance abuse 
training as part of new miner and annual refresher training curriculum. 
With assistance from DOL's Working Partners program, we will be 
developing materials to assist in conducting this training. Further, 
our National Mine Health and Safety Academy is producing an awareness 
video on the hazards of alcohol and other drugs. This video will be 
used for new miner and annual refresher training.
    A number of mine operators have voluntarily implemented drug-free 
workplace programs, and many report that these programs have improved 
workplace safety and reduced workers' compensation costs. Additionally, 
some of these operators have told us that miners at their mines are 
supportive of these programs. However, the adoption of these programs 
is far from being an industry-wide practice. Many miners, particularly 
those working in small mines are not likely to have access to these 
programs.

IV. Issues

    We are seeking supporting information or data that will help us 
evaluate whether there is a need for additional federal action to 
address safety risks stemming from alcohol and other drug use by 
miners, and if so, whether this should involve rulemaking and what that 
regulation should include. In general, we are seeking information and 
comment on the extent of alcohol and other drug use problems in the 
mining industry and the impact on safety and health, and the types of 
programs currently in place and their effectiveness. Additionally, we 
need to assess both the costs and benefits of any intended federal 
action. We encourage the public to respond to the questions posed 
below. We also invite suggestions on alternatives or supplements to 
rulemaking that we should pursue. Please be as specific as possible in 
your responses to the questions and in suggesting alternatives. 
Providing specific examples, as well as cost and benefit estimates 
where possible, will help us evaluate and analyze your comments.

A. Nature, Extent, and Impact of the Problem

    We believe that the use and misuse of alcohol and other drugs in 
the mining community and mining workplace create a preventable risk to 
the safety of miners. We are concerned that impaired miners can 
jeopardize their own safety and the safety of their fellow miners. 
Please provide examples and data to support your answers to the 
following questions:
    A1. What specific substances are most prevalent and pose the 
greatest threats to mine safety and health? Please include comments on 
``controlled substances,'' illegal or illicit drugs, alcohol, 
inhalants, prescription and over-the-counter drugs, and any other 
substances you believe may create safety hazards when used or misused 
by miners.
    A2. Based on your experience and knowledge of the industry, how 
widespread is the use or misuse of alcohol or other drugs in the mining 
workplace?
    A3. How severe a risk does the use or misuse of alcohol and other 
drugs pose to miners' safety?
    A4. What accidents or injuries at your mine in the last five years 
have involved alcohol or other drugs?

B. Prohibited Substances and Impaired Miners

    Our existing metal and non-metal standards [30 CFR 56/57.20001], as 
stated above, require:

    Intoxicating beverages and narcotics shall not be permitted or 
used in or around mines. Persons under the influence of alcohol or 
narcotics shall not be permitted on the job.

No similar standard applies to coal mines. Please provide examples and 
data to support your answers to the following questions:
    B1. Should we revise this existing metal and non-metal standard and 
establish a standard for coal mines? If so, how?
    B2. What substances should be prohibited? Please include comments 
on controlled substances, alcohol, misuse of prescription and over the 
counter drugs, and inhalants.
    B3. How should impairment be determined, and who should make the 
determination?
    B4. What actions should operators be required to take once an 
impaired miner is identified (e.g., remove from site, send home for the 
day, refer to the Employee Assistance Program or elsewhere for 
assessment, send for drug test, terminate, fine, or other actions)?
    B5. What policy or procedures do you have regarding employees who 
are using legally and properly prescribed drugs that may cause 
impairment?

C. Training

    Parts 46 and 48 of 30 CFR specify training requirements for 
supervisors and miners. Our regulations currently do not require 
training in the prevention of alcohol and other drug misuse. Please 
provide examples and data to support your answers to the following 
questions:
    C1. Should our regulations address training in the prevention of 
alcohol and other drug misuse? If so, how?
    C2. Who should receive this training (e.g., supervisors, managers, 
foremen, miners, miners' representatives?)
    C3. What topics should be included?
    C4. What training do you provide to address alcohol and other drug 
misuse?

D. Inquiries Following Accidents

    Section 50.11 of 30 CFR (Investigation of accidents) requires mine 
operators to report and investigate accidents, and establishes criteria 
for the investigation and the report. Please provide examples and data 
to support your answers to the following questions:
    D1. Should we revise 30 CFR 50.11 to address alcohol and other drug 
use inquiries by mine operators during accident investigations? Section 
50.11 provides as follows:


[[Page 57811]]



Sec.  50.11 Investigation.

    (a) After notification of an accident by an operator, the MSHA 
District Manager will promptly decide whether to conduct an accident 
investigation and will promptly inform the operator of his decision. 
If MSHA decides to investigate an accident, it will initiate the 
investigation within 24 hours of notification.
    (b) Each operator of a mine shall investigate each accident and 
each occupational injury at the mine. Each operator of a mine shall 
develop a report of each investigation. No operator may use Form 
7000-1 as a report, except that an operator of a mine at which fewer 
than twenty miners are employed may, with respect to that mine, use 
Form 7000-1 as an investigation report respecting an occupational 
injury not related to an accident. No operator may use an 
investigation or an investigation report conducted or prepared by 
MSHA to comply with this paragraph. An operator shall submit a copy 
of any investigation report to MSHA at its request. Each report 
prepared by the operator shall include,
    (1) The date and hour of occurrence;
    (2) The date the investigation began;
    (3) The names of individuals participating in the investigation;
    (4) A description of the site;
    (5) An explanation of the accident or injury, including a 
description of any equipment involved and relevant events before and 
after the occurrence, and any explanation of the cause of any 
injury, the cause of any accident or cause of any other event which 
caused an injury;
    (6) The name, occupation, and experience of any miner involved;
    (7) A sketch, where pertinent, including dimensions depicting 
the occurrence;
    (8) A description of steps taken to prevent a similar occurrence 
in the future; and
    (9) Identification of any report submitted under Sec.  50.20 of 
this part.

    D2. What type of alcohol and other drug use inquiries should be 
made after accidents (e.g., questioning, drug testing)?
    D3. What degree of accident or injury should trigger an inquiry 
(all, fatal, lost-time, others)?
    D4. How should the information collected in the inquiry be used, 
and by whom?
    D5. What actions should be required if it is determined that the 
use of alcohol or other drugs was a contributing factor or cause of the 
accident?

E. Drug-Free Workplace Programs

    Although our regulations currently do not require programs to 
address the safety hazards that the presence of alcohol and other drugs 
in the workplace may cause, some mine operators have voluntarily put 
these programs in place. Typically, such a program, often called a 
drug-free workplace program, includes at least one of the following 
five components: drug-free workplace policy; employee education; 
supervisory training; drug testing; and an employee assistance program. 
Please provide examples and data to support your answers to the 
following questions:
    E1. Do you have a drug-free workplace program at your mine, or have 
you instituted any of the above mentioned components, even if not 
referred to as a drug-free workplace? Please provide a copy of your 
program policy and procedures. Is this program part of a broader 
program?
    E2. If you have a drug-free workplace policy or program:
    E2-a. What prompted you to initiate your program?
    E2-b. What components does your program have?
    E2-c. Which of your program's components do you feel are most 
critical and/or effective, and why?
    E2-d. Have you been able to document any improvement as a result of 
your program?
    E2-e. Please provide any data that demonstrate the extent of the 
problem at your mine and the effectiveness of your program in improving 
safety at your mine.
    E2-f. What issues/problems have you encountered in implementing 
your program and how have you resolved them?
    E2-g. What actions are taken for miners who violate the terms of 
the policy?
    E3. If you previously had a drug-free workplace program, what did 
it include? Why was it discontinued?
    E4. If you conduct supervisory training on drug issues, how are 
supervisors taught to recognize and handle employees who may have 
alcohol and/or other drug problems? Please elaborate on how supervisors 
make these determinations.
    E5. Do you have an employee assistance program, and if so, how many 
employees have accessed the EAP for problems related to alcohol and 
drug use? How many of these employees have had their problems resolved 
successfully?

F. Costs and Benefits

    We are particularly interested in the costs and benefits you have 
experienced in planning and implementing a drug-free workplace program. 
In addition, we are interested in knowing what you estimate the costs 
to be of designing and implementing other elements of a drug-free 
workplace program. Please provide examples and data to support your 
answers to the following questions:
    F1. What costs have you incurred from your efforts to reduce or 
eliminate drugs or alcohol from the workplace? Please provide the costs 
by type (e.g., personnel, training, equipment).
    F2-a. What costs would be associated with having a drug-free 
workplace program (e.g., program implementation, training, drug 
testing, EAP, restricted work programs, personnel effects)?
    F2-b. Would these costs be borne disproportionately by small mines? 
If so, please explain how and by how much the costs would vary.
    F3. What benefits have you derived from your efforts to reduce or 
eliminate alcohol or drugs from the workplace (e.g., lower workers 
compensation costs, reduced absenteeism, employee morale, reduction in 
turnover, accident and injury reduction and related cost savings)?

    Dated: September 29, 2005.
David G. Dye,
Acting Assistant Secretary for Mine Safety and Health.
[FR Doc. 05-19846 Filed 9-29-05; 3:11 pm]
BILLING CODE 4510-43-P