[Federal Register Volume 73, Number 174 (Monday, September 8, 2008)]
[Proposed Rules]
[Pages 52136-52163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20561]



[[Page 52135]]

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Part V





Department of Labor





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Mine Safety and Health Administration



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30 CFR Parts 56, 57, and 66



Alcohol- and Drug-Free Mines: Policy, Prohibitions, Testing, Training, 
and Assistance; Proposed Rule

  Federal Register / Vol. 73, No. 174 / Monday, September 8, 2008 / 
Proposed Rules  

[[Page 52136]]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 56, 57, and 66

[1219-AB41]


Alcohol- and Drug-Free Mines: Policy, Prohibitions, Testing, 
Training, and Assistance

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

ACTION: Proposed rule.

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SUMMARY: The proposed rule would replace the existing metal and 
nonmetal standards for the possession and use of intoxicating beverages 
and narcotics and establish a standard for all mines. The proposed rule 
would designate the substances that cannot be possessed on mine 
property or used while performing safety-sensitive job duties, except 
when used according to a valid prescription. Mine operators would be 
required to establish an alcohol- and drug-free mine program, which 
includes a written policy, employee education, supervisory training, 
alcohol- and drug-testing for miners that perform safety-sensitive job 
duties and their supervisors, and referrals to assistance for miners 
who violate the policy. The proposed rule would also require those who 
violate the prohibitions to be removed from the performance of safety-
sensitive job duties until they complete the recommended treatment and 
their alcohol- and drug-free status is confirmed by a return-to-duty 
test.

DATES: All comments must be received by midnight eastern standard time 
on October 8, 2008.

ADDRESSES: Comments must be clearly identified with ``RIN 1219-AB41'' 
and may be sent by any of the following methods:
    (1) Federal e-Rulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    (2) Electronic mail: [email protected]. Include ``RIN 1219-
AB41'' in the subject line of the message.
    (3) Facsimile: 202-693-9441. Include ``RIN 1219-AB41'' in the 
subject line of the message.
    (4) Regular Mail: MSHA, Office of Standards, Regulations, and 
Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209-
3939.
    (5) Hand Delivery or Courier: MSHA, Office of Standards, 
Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, 
Arlington, Virginia. Sign in at the receptionist's desk on the 21st 
floor.
    Comments can be accessed electronically at http://www.msha.gov 
under the Rules and Regs link. MSHA will post all comments on the 
Internet without change, including any personal information provided. 
Comments may also be reviewed at the Office of Standards, Regulations, 
and Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia. 
Sign in at the receptionist's desk on the 21st floor.
    MSHA maintains a list that enables subscribers to receive e-mail 
notification when rulemaking documents are published in the Federal 
Register. To subscribe, go to http://www.msha.gov/subscriptions/subscribe.aspx.
    Information Collection Requirements: Comments concerning the 
information collection requirements of this proposed rule must be 
clearly identified with ``RIN 1219-AB41'' and sent to both the Office 
of Management and Budget (OMB) and MSHA. Comments to OMB may be sent by 
mail addressed to the Office of Information and Regulatory Affairs, 
Office of Management and Budget, New Executive Office Building, 725 
17th Street, NW., Washington, DC 20503, Attn: Desk Officer for MSHA. 
Comments to MSHA may be transmitted either electronically to [email protected], by facsimile to (202) 693-9441, or by regular mail, 
hand delivery, or courier to MSHA, Office of Standards, Regulations, 
and Variances, 1100 Wilson Blvd., Room 2350, Arlington, Virginia 22209-
3939.

FOR FURTHER INFORMATION CONTACT: Elena Carr at [email protected] (E-
mail), 202-693-5959 (Voice).

SUPPLEMENTARY INFORMATION: The outline of this proposal is as follows:

I. Introduction
II. Background
III. Discussion of the Proposed Rule
    A. Nature, Extent, and Impact of the Problem
    B. Effective Strategies for Addressing Alcohol and Drug Problems 
in Mining
    C. Basis of Proposal
IV. Section-by-Section Discussion
V. Executive Order 12866
    A. Population at Risk
    B. Benefits
    C. Compliance Costs
    D. Feasibility
VI. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act
    A. Definition of a Small Mine
    B. Factual Basis for Certification
VII. Paperwork Reduction Act
VIII. Other Regulatory Considerations
    A. The Unfunded Mandates Reform Act of 1995
    B. The Treasury and General Government Appropriations Act of 
1999: Assessment of Federal Regulations and Policies on Families
    C. Executive Order 12630: Government Actions and Interference 
with Constitutionally Protected Property Rights
    D. Executive Order 12988: Civil Justice Reform
    E. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. Executive Order 13272: Proper Consideration of Small Entities 
in Agency Rulemaking
IX. Proposed Rule

I. Introduction

    The Mine Safety and Health Administration's (MSHA) mission is to 
administer and enforce the provisions of the Federal Mine Safety and 
Health Act of 1977 (Mine Act), as amended by the Mine Improvement and 
New Emergency Response Act of 2006 (MINER Act), and includes promoting 
improved safety and health conditions in the nation's mines. Under the 
Mine Act, MSHA is required to develop improved mandatory safety and 
health standards for coal and metal/nonmetal mines. The misuse of 
alcohol and/or drugs is a risk to miner safety. Because mining is 
inherently dangerous, MSHA is proposing a standard to address this 
risk.
    Currently, MSHA's mine accident investigations do not routinely 
include inquiries into the use of alcohol or drugs as contributing 
factors. Consequently, there may have been accidents in which alcohol 
or drugs were involved but were not reported to inspectors or 
identified during MSHA investigations. A preliminary review of fatal 
and non-fatal mine accident records revealed a number of instances in 
which alcohol or drugs or drug paraphernalia were found or reported, or 
where the post-accident toxicology screen revealed the presence of 
alcohol or drugs.
    The U.S. Department of Health and Human Services, Substance Abuse 
and Mental Health Services Administration's (SAMHSA) 2006 National 
Survey on Drug Use and Health \1\ reports that in 2006, of the 17.9 
million illicit drug \2\ users age 18 and

[[Page 52137]]

over, 13.4 million (74.9 percent) were employed.\3\ Similarly, among 54 
million adult binge drinkers, 42.9 million (79.4 percent) were 
employed, and among 16.3 million persons reporting heavy alcohol use, 
12.9 million (79.2 percent) were employed.\4\ Also, in 2006, of the 
20.6 million adults classified with substance dependence or abuse, 12.7 
million (61.5 percent) were employed full-time.\5\ Furthermore, among 
the U.S. working age population (ages 18-64) diagnosed with a substance 
use disorder, 62.7 percent were employed full-time.\6\
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    \1\ The 2006 National Survey on Drug Use and Health (NSDUH) is 
the annual survey and primary source of information on the use of 
illicit drugs, alcohol, and tobacco in the civilian, non-
institutionalized population of the United States aged 12 years or 
older.
    \2\ The survey defined current illicit drug use as the non-
medical use of marijuana/hashish, cocaine (including crack), heroin, 
hallucinogens, inhalants or prescription-type drugs. Non-medical use 
is defined as the use of prescription-type drugs not prescribed for 
the respondent by a physician or used only for the experience or 
feeling they caused. Non-medical use of any prescription-type pain 
reliever, sedative, stimulant, or tranquilizer does not include 
over-the counter drugs. Non-medical use of stimulants includes 
methamphetamine use.
    \3\ Substance Abuse and Mental Health Services Administration 
(2007). Results from the 2006 National Survey on Drug Use and 
Health: National Findings (Office of Applied Studies, NSDUH Series 
H-32, DHHS Publication No. SMA 07-4293). Rockville, MD.
    \4\ Ibid.
    \5\ Ibid.
    \6\ Ibid.
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    According to a 1998 analysis of available toxicology reports across 
a variety of occupations and within different industries, the Bureau of 
Labor Statistics (BLS) estimated that as many as one in five workplace 
fatalities had a positive test for alcohol or drugs.\7\ BLS reported 
that alcohol was the substance found most often, appearing in 48 
percent of positive reports.\8\
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    \7\ Weber, W., and Cox, C. ``Work-Related Fatal Injuries in 
1998,'' Compensation and Working Conditions, Spring 2001, pp. 27-29.
    \8\ Ibid.
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    SAMHSA's June 2007 Worker Substance Use and Workplace Policies and 
Programs Report \9\ shows alcohol and other drug use and abuse by 
standard occupational and industry classifications. Illicit drug use 
was reported at 15.1 percent and heavy alcohol use was reported at 17.8 
percent among full-time workers aged 18-64 in the construction, trade, 
and excavation occupational group.\10\ The data also show that in the 
mining \11\ industry, 13.3 percent of full-time miners were heavy 
alcohol users and 7.3 percent admitted that they used illicit drugs 
within the past month. This does not mean that those surveyed admitted 
to either being under the influence or having used alcohol or drugs at 
work or immediately prior to work. However, the statistics do suggest a 
cause for employer concern since there are no guarantees that those who 
drink heavily or abuse drugs will constrain such behaviors, which have 
the potential to seriously jeopardize mine safety, to off-duty hours.
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    \9\ Substance Abuse and Mental Health Services Administration 
(2007). The Worker Substance Use and Workplace Policies and Programs 
Report presents findings on substance abuse among workers and on 
workplace drug policy and programs from the 2002, 2003, and 2004 
National Surveys on Drug Use and Health. (Office of Applied Studies, 
Analytic Series: A-29.)
    \10\ The Standard Occupation System categorizes occupations into 
21 groups. The Construction Trades and Extraction Workers group 
includes mining.
    \11\ The NAICS, which replaced the Standard Industry 
Classification (SIC), categorizes all industries into 19 major 
groups and is used to classify industries in the Report.
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    Using alcohol and/or drugs can affect a miner's coordination and 
judgment significantly at a time when he or she needs to be alert, 
aware, and capable of performing tasks where there is substantial risk 
of injury to oneself or others. Even prescription medications may 
affect a miner's perception and reaction time. Mining is a complicated 
and hazardous occupation, and a clear focus on the work at hand is a 
crucial component of mine safety. Miners under the influence of alcohol 
and/or prohibited drugs endanger themselves as well as their co-
workers. This is of particular concern since many fatal and non-fatal 
mining accidents involve the operation of some type of equipment, tool, 
or machinery.
    A number of mine operators recognize this problem, and require 
applicants for employment to submit to and pass a pre-employment drug 
screening. At the Keeping America's Mines Alcohol and Drug Free summit 
held on December 18, 2004, some mine operators stated that a number of 
job applicants are unable to pass the initial drug screen.\12\
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    \12\ This summit was hosted by the states of Kentucky, Virginia 
and West Virginia and by the U.S. Department of Labor, Mine Safety 
and Health Administration.
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    To the extent that misuse of alcohol and/or abuse of drugs by 
miners is prevalent in the community, as evidenced by the survey data 
referenced above, and given the inherent risks in mining that would 
only be compounded by the dangers of alcohol or drug use at the 
worksite, MSHA has determined the need to protect the safety of all 
miners by issuing a rule that prohibits miners from using, possessing, 
or being under the influence of alcohol or drugs when performing 
safety-sensitive job duties.

II. Background

    The Mine Act \13\ expressly states that the health and safety of 
the miner is the first priority and concern of all in the coal or other 
mining industry. The prevention of deaths and serious injuries from 
unsafe and unhealthful conditions and practices in the coal or other 
mines continues to be one of the many priorities of the Act. Section 
101(a) of the Act authorizes the Secretary of Labor to develop, 
promulgate, and revise as may be appropriate improved mandatory health 
or safety standards for the protection of life and prevention of 
injuries in coal or other mines.
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    \13\ Public Law 91-173, as amended by Public Law 95-164.
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    The presence and use of intoxicating beverages and narcotics is 
currently prohibited in both the surface and underground metal and 
nonmetal mine regulations found at 30 CFR 56.20001 and 57.20001. The 
current regulation states: ``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.'' 
The regulations do not contain a similar requirement for coal mines.
    During the 30 years from 1978 to early 2008, a total of 270 
citations were issued for violations of these alcohol and drug 
prohibitions. Of these, 242 (89.6 percent) were at surface mines and 28 
(10.4 percent) were at underground mines. Between January 1, 2000 and 
June 30, 2005, penalties were assessed for 75 violations of section 
56.20001 and for three violations of section 57.20001 of the 
regulations.
    Since the late 1980s, a proactive federal government has 
implemented a number of programs aimed at reducing the use of alcohol 
and drugs in the workplace. The Anti-Drug Abuse Act of 1986 (Pub. L. 
99-570), directed the Secretary of Labor to initiate efforts to address 
the issue. Subsequently in 1986, Executive Order 12564, Drug-Free 
Federal Workplace, established federal drug-free workplaces by 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., required 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, required transportation industry employers to conduct alcohol- and 
drug-testing for employees in ``safety-sensitive'' positions, creating 
a model that many non-regulated employers now follow.\14\
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    \14\ The U.S. Department of Transportation's drug-testing 
regulations (49 CFR part 40) and several mode-specific regulations 
were published in 1988 and were initially based on the agency's 
general safety responsibilities rather than as a response to 
specific statutory authorization.

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[[Page 52138]]

    MSHA has addressed the issue of alcohol and drug misuse since the 
1990s. In recent years MSHA, in close collaboration with the Department 
of Labor's (DOL) Working Partners program,\15\ has taken the lead and 
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 drugs. MSHA and the Joseph A. Holmes Safety Association 
partnered and 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 that includes 
a commitment to ``work to ensure a safe, healthy, and alcohol- and 
drug-free workplace.'' To date, approximately 24,252 miners (roughly 
six percent of the mining workforce) have taken this pledge.
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    \15\ The Department of Labor's Working Partners program is an 
education and outreach initiative that equips employers and unions 
with information and tools to effectively address workplace alcohol 
and drug problems.
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    Each of MSHA's 51 metal and nonmetal program field offices 
routinely holds meetings that include presentations and discussions of 
alcohol and drug abuse to raise awareness and provide information to 
mine operators. MSHA also participates in a DOL drug-free workplace 
alliance that provides union members and the construction and mining 
industries with information, guidance, and access to training resources 
that will help them understand the benefits of drug-free workplace 
programs and protect employee health and safety.
    Since 2006, MSHA has encouraged mine operators and miners to 
participate in the National Drug-Free Work Week, which takes place in 
October. A number of mine operators have voluntarily implemented drug-
free mine programs, and many report that these programs have improved 
mine safety and reduced workers' compensation costs. In addition, some 
of these mine operators have told MSHA that employees 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.
    In December 2004, MSHA 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 misuse of alcohol and 
drugs by miners. At the summit, industry representatives expressed 
concerns about the problems related to the use of alcohol and drugs in 
mines. Several coal mine operators described the effectiveness of their 
drug-free mine programs and expressed their concern that such programs 
were not universal in the industry. Also at the summit, LaJuana 
Wilcher, Secretary of Kentucky's Environmental and Public Protection 
Cabinet, announced plans to form a Mine Substance Abuse Task Force to 
address the increasing concern about alcohol and drug abuse in the 
mining industry. The Task Force, charged with gathering and evaluating 
pertinent information on substance abuse and its impact on the health 
and safety of miners, issued a Final Report in December 2005, which 
included recommendations for state and federal regulatory agencies as 
well as the mining industry on how to eliminate substance abuse among 
miners. Kentucky and Virginia have since adopted many of the 
recommendations in their new state laws that require drug-testing as 
part of the miner certification process.
    Because of concern that misuse of alcohol and drugs compromises 
miner safety, in October 2005, DOL published an advance notice of 
proposed rulemaking (ANPRM) entitled, ``Use of or Impairment from 
Alcohol and Other Drugs on Mine Property,'' to inform the public that 
MSHA was considering a rule to address substance abuse in the mines and 
to gather information. Seven public information gathering meetings were 
also held in October and November 2005 to get additional public 
input.\16\ Comments were sought on the following key issues: The 
nature, extent, and impact of the problem; what substances should be 
prohibited; how to address/determine impairment; whether training on 
workplace substance abuse should be required and, if so, what training 
should be required; whether/how to address substance abuse in accident 
investigations; what the critical/effective elements of drug-free mine 
programs are; and what the costs/benefits of requiring and/or 
implementing drug-free mine programs would be.
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    \16\ The public information gathering meetings were held in Salt 
Lake City, Utah; St. Louis, Missouri; Birmingham, Alabama; 
Lexington, Kentucky; Charleston, West Virginia; Pittsburgh, 
Pennsylvania; and Arlington, Virginia.
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    Although many of those commenting through oral or written 
statements agreed that there is a need for MSHA to take action to 
address substance abuse in the mines, most reports were anecdotal and 
data were not provided to specifically quantify the extent of the 
problem in the U.S. mining industry.
    Since the ANPRM was published in 2005, two states have passed drug-
testing laws (Kentucky in July 2006 and Virginia in April 2007) that 
require miners to submit to drug-testing in order to obtain and 
maintain their state miner's certification. A similar law was proposed 
in West Virginia in February 2006, but was not adopted. A subsequent 
version was proposed in January 2008 and is currently under 
consideration by the West Virginia state House Judiciary Committee.\17\
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    \17\ Although there are a variety of specialty certifications 
that miners are required to get in order to perform certain mining 
functions, only a handful of states (Kentucky, Virginia, West 
Virginia, Pennsylvania, Oklahoma, and Colorado) require a general 
miner certification in order to be employed as a miner.
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    The 2006 Kentucky law requires that all applicants for mining 
certifications pass alcohol- and drug-tests administered by the state 
before a certification will be issued. Tests are conducted for eleven 
drugs: amphetamines, barbiturates, benzodiazepines, cocaine, marijuana, 
methadone, methaqualone, opiates, oxycodone, phencyclidine, and 
propoxyphene. The law gives the state authority to conduct post-
accident alcohol- and drug-testing in the event of a serious mine 
accident, serious physical injury, or fatality. Although the state law 
does not require mining companies to do so, those that adopt a drug-
free mine program, certified by the state's Office of Mine Safety and 
Licensing (OMSL), and include drug-testing and an employee assistance 
program (EAP), are eligible for a 5 percent credit on workers' 
compensation premiums. Mine operators are required to report miners who 
violate their substance abuse policy to the Kentucky OMSL. Although 
currently certified miners are not routinely tested by the state, the 
law requires annual education and training on alcohol and drug abuse 
for both miners and supervisors.
    Training must be conducted by approved sources and may be provided 
on the owner's or licensee's site or at a private training site. In 
addition, employers are required to pay the miners when they attend and 
pay for the training. The year 2007 marked the

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lowest number of mining fatalities in Kentucky history and this law is 
credited with causing the improvement. In the time since the law was 
enacted, there have been seven fatal accidents. The required toxicology 
reports were completed in all cases and showed evidence of recent drug 
use in at least one of these fatal accident cases.
    According to Kentucky state officials, approximately 17,100 
certified miners are actively working in Kentucky's 526 licensed mines. 
Since the drug-testing law was enacted, a total of 11,930 pre-
certification tests have been conducted. The number of positive pre-
certification tests is not known because of how Kentucky tracks the 
data. Since the law's inception, there have been 459 reported 
violations of the industry's drug-free requirement, which have affected 
certifications as follows: 170 certifications remain suspended, 109 are 
on probation, 56 have been rescinded, 89 are revoked, 22 are 
permanently revoked, and 13 probationary periods were completed. 
Employers are not required to report or record the type of drugs for 
which miners tested positive.
    The 2007 Virginia law requires mine operators to implement a 
substance abuse screening policy and program for all miners. At a 
minimum, the programs must include a pre-employment, 11-drug urine test 
(the same panel that Kentucky uses). The law also requires that testing 
be conducted as part of an accident investigation if reasonable cause 
exists to suspect drug involvement or that drugs were a contributing 
factor to a serious accident. Mine operators are required to notify the 
state mining board of any failure of a pre-employment substance abuse 
screening test, or when a miner is discharged due to a violation of the 
company's substance or alcohol abuse policies (e.g., a miner testing 
positive for intoxication while on duty status, or a miner testing 
positive for use of a prohibited substance without an appropriate 
prescription). Upon notification, any certifications held by the miner 
are temporarily suspended pending a hearing before the Virginia Board 
of Coal Mining Examiners.
    According to state officials, there are 4,290 certified miners and 
244 licensed mines in Virginia. To date, there have been 90 positive 
tests reported by companies and 3 positive tests reported as a result 
of an inspector-ordered test after an accident investigation. Of these, 
41 have had their certificate suspended (including those waiting for 
their scheduled hearings), 25 certificates have been revoked, and 19 
have been re-instated. Twenty-nine miners have been referred to 
treatment.

III. Discussion of the Proposed Rule

A. Nature, Extent, and Impact of the Problem

    Employment in the mining industry during this decade has been 
steady at around 340,410 in about 23,054 mines (including contractors). 
In 2007, the Bureau of Labor Statistics reports that the industry 
sectors with the highest fatal occupational injury rates were 
agriculture, forestry, fishing and hunting (29.6 percent),\18\ mining 
(27.8 percent),\19\ and coal mining (49.5 percent).\20\ It should be 
noted that BLS data includes oil and gas extraction, mining, and 
support activities for mining. While the extent of the alcohol and drug 
problem in mining has not been directly measured, there appears to be 
abuse and negative consequences in mines. Abuse of alcohol and drugs is 
pervasive in society and mining worksites are not immune. In fact, many 
communities hard-hit by drugs are those where mining is the main 
industry. Data collected by SAMHSA from individuals employed in the 
mining industry suggest that a significant number of mine operators 
perform pre-employment tests and perform random testing to discourage 
use among employed miners. Specifically, within the mining industry, 
nearly four out of five workers report that companies perform alcohol 
and drug tests on a pre-employment basis, which is nearly double the 
reported all-industry average. Similarly, nearly three-quarters of 
those working in the mine industry report random testing, which is more 
than double the reported all-industry average (of nearly 30 percent). 
These data suggest that alcohol and drug use by miners is a significant 
enough threat to safety to compel mine operators to voluntarily choose 
to conduct alcohol- and drug-testing.\21\
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    \18\ Number and Rate of Fatal Occupational Injuries, by Industry 
Sector, 2006--U.S. Bureau of Labor Statistics, U.S. Department of 
Labor.
    \19\ Ibid.
    \20\ U.S. Department of Labor, Bureau of Labor Statistics, 
Census of Fatal Occupational Injuries, 2006.
    \21\ Data are extracted from on-line tables from the SAMHSA 
2002, 2003, and 2004 National Surveys on Drug Use and Health.
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    Since 2005, a number of media articles have highlighted drug use in 
the coal mines, with seven articles published since January 2007. The 
articles appeared mostly in local newspapers, covering situations in 
Virginia, Kentucky, and West Virginia.\22\ An extensive front-page 
article discussing drugs and drug addiction in the mines of western 
Virginia was published in The Washington Post in January 2008 and 
republished throughout various regional papers. Several articles 
suggest that miners misuse drugs (mainly prescription painkillers) 
after becoming addicted to them during treatment for chronic work-
related pain and injuries.
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    \22\ The sources include: The Washington Post, USA Today, The 
Charleston Gazette, The Courier-Journal (Louisville, KY), Harlan 
Daily Enterprise, The State Journal (Charleston, WV), and Coal Age 
Magazine.
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    Some articles also mention fatalities and serious injuries in three 
separate mining accidents where drugs were discovered on-site or 
observed via post-accident drug screening, even though the 
investigation reports did not necessarily consider drug use to be a 
contributing factor to the accidents.
    In the 2005 ANPRM, MSHA sought comments on the nature, extent, and 
impact of substance abuse in the mining workplace. The ANPRM also 
sought comments on the most prevalent substances used; how widely they 
are used in the mine; the severity of the risks associated with alcohol 
or drug use by mine workers; and the link between accidents or injuries 
and alcohol or drug use.
    Many of the 65 written and oral comments received from mine 
operators, mining associations, and mine workers acknowledge the 
existence of an alcohol and drug problem that endangers mine safety. 
The commenters cited a number of factors regarding the prevalence of 
alcohol or drugs in the mining workplace. Other commenters suggested 
that the geographic location of mines and whether mine operators are 
committed to testing and alcohol- and drug-free workplaces impacts the 
misuse of alcohol and drugs in the mining workplace. Two commenters 
stated that the use of illegal drugs was most prevalent among job 
applicants and new hires. Another commenter stated that alcohol abuse 
is a problem that most often affects older workers.
    A majority of the commenters agreed that the use or misuse of 
alcohol and drugs poses a severe or significant risk to miners' safety. 
FMC Corp. stated that ``miners, both surface and underground, operate 
expensive and dangerous equipment on a routine basis, and the use of 
drugs or alcohol can severely impact an individual's judgment and put 
co-workers and equipment at risk.'' Another commenter, Graymont Western 
US, Inc., noted that ``the severity of the risk imposed by a miner 
impaired due to alcohol or substance abuse cannot be overstated'' and 
``the potential hazards associated with mining are known and well 
documented.'' Thus, ``permitting an impaired individual to work in an

[[Page 52140]]

environment where, for example, methane gas is liberated or on or 
around machinery capable of causing bodily harm cannot be tolerated.'' 
The International Coal Group (ICG) ``believe[s] that the abuse of a 
controlled substance creates a very serious risk to the health and 
safety of all miners.'' ICG further states that ``the individual places 
themselves and others around them in a dangerous situation [and] 
[a]llowing an individual to work in an environment under the influence 
of a control[led] substance could affect the safe operation of 
machinery and the sound judgment needed to make critical decisions in 
performing all work task[s] in a safe manner.''
    A former Nevada underground miner suggested that the work shifts, 
travel time to and from work, lack of sleep, and chronic pain 
contribute to the abuse of alcohol and drugs by miners. Another 
commenter specifically stated that alcohol and drug abuse exists and 
that ``mining companies must deal with the amount of alcohol and drug 
abuse, the types of illicit drugs abused, and the fact that the amount 
and types of prescription drugs abused varies greatly by location and 
time.''
    The drugs of concern specifically mentioned by commenters include 
alcohol, marijuana, cocaine, opiates, methamphetamines, and 
prescription painkillers (notably methadone and oxycodone). Concern was 
expressed not only about the non-medical use of prescription 
painkillers, but also about the impact that legally used medications 
could have on impairment of job functioning.
    The United Mine Workers of America (UMWA), on behalf of the Navajo 
Nation, expressed concern about a lack of substantial evidence that 
would directly link a particular accident to the use of peyote or 
natural herbs. Furthermore, the UMWA also questioned the accuracy of 
some of the ANPRM preamble statements and indicated that they would 
like to see ``data that says where the problems are, and how they exist 
and what we should do from there.''
    Although a subsequent internal DOL review of accident reports 
failed to reveal a significant number of cases where alcohol or drugs 
were determined to be causative factors, it did reveal a lack of 
consistency in whether and how alcohol and drug tests are performed and 
in the investigative process used to determine whether alcohol or drugs 
may have been factors. In fact, currently accident investigations do 
not routinely include an inquiry into the use of alcohol or drugs and 
this is a failure that the proposed rule intends to address.
    Although there are limited data, anecdotal reports suggest a 
relationship between alcohol and drug use and mine accidents. Increased 
concern about the issue arose in 2003 after a blasting accident at an 
Eastern Kentucky coal mine (Cody Mining Co. in Floyd County) in which 
one miner was killed and another seriously injured. Marijuana was found 
at the scene, and a witness reported having seen the miners snorting 
crushed painkillers. An autopsy of the dead miner confirmed the 
presence of painkillers. The surviving miner was not tested, and there 
was no federal or state requirement to do so. In December 2005, a 29-
year-old miner (at No. 3 Mine of HandD Mining, Inc.) died after an 
overloaded coal hauler severed his legs. Although no discussion was 
included in the fatality report about whether drug use may have 
contributed to the accident, the hauler's driver and the dead miner 
both tested positive for painkillers and marijuana.
    Another incident occurred at Langley Hill Quarry where a truck 
driver apparently fell from a parked truck onto a concrete pad, 
sustained facial and skull fractures and died sometime later. The 
report noted that ``medical records showed a blood alcohol 
concentration (BAC) level of 0.04 percent,'' but went on to conclude 
``it could not be determined why or exactly from where [the driver] 
fell. There was no apparent need to have climbed onto the handrail or 
the rear of the truck.'' No explanation was given for why the BAC level 
does not specifically appear in the conclusion as a causal or 
contributing factor despite the fact that a 0.04 percent BAC, under the 
DOT regulations, is considered high enough to cause impairment and is a 
violation of the DOT drug rule.
    At East Volunteer, a victim was operating a malfunctioning 
telescopic lift and was pinned between the lift platform rail and part 
of the ceiling infrastructure. The victim was noted in the report, 
under the ``human factors'' section, as having a toxicology analysis 
that ``revealed methamphetamine intoxication,'' but it was not 
mentioned in the root-cause analysis or conclusion. It is reasonable to 
question whether the victim's intoxication may have impacted his 
observation skills as the malfunction was happening and possibly slowed 
his decision-making on how to respond.
    An alcohol- and drug-free mine program as proposed in this rule 
will contribute to the prevention of such incidents and provide all 
miners, regardless of what state they work in and the size of the mine 
they work for, equal safety protection from working alongside miners 
under the influence of alcohol and/or drugs on the job. More uniform 
testing and reporting would address the need to collect data about the 
frequency of post-accident tests that reveal alcohol or drug 
involvement.

B. Effective Strategies for Addressing Alcohol and Drug Problems in 
Mining

    The ANPRM also sought data on the effectiveness of drug-free 
workplace programs to improve safety in the mine. Although numerous 
commenters expressed the belief that drug-free mine programs that 
include drug-testing and education were effective strategies for 
protecting mine safety, few compelling data were received. However, 
numerous mine industry employers and two state governments (Kentucky 
and Virginia, as discussed previously) have instituted drug-free mine 
programs that require drug-testing and have passed anti-drug laws 
specifically targeted to the mining industry and report success of 
these efforts.
    Several commenters cited their low number of positive results on 
post-accident alcohol and drug tests as evidence of the effectiveness 
of their overall drug-free mine programs. Oxbow Mining reported that 
``two relatively minor accidents occurred in which the injured tested 
positive for illegal drugs (THC/marijuana), [and] in both cases the 
injured were terminated from employment.'' Another commenter uses post-
accident testing and noted that ``if we were not conducting this 
testing, it is reasonable to believe the problem would be much 
greater.''
    There was a general agreement that alcohol- and drug-free mine 
programs are desirable. Nonetheless several commenters opined that the 
issue of alcohol and drugs in the mine could not be solved through 
additional rulemaking. More than one commenter believed there was no 
reason for MSHA to issue regulations either because coal companies have 
already adopted or implemented drug-free workplace programs or because 
they do not believe the problem to be pervasive. Still others expressed 
support for regulations that would standardize the expectation and 
enforcement of an alcohol- and drug-free workforce throughout the 
industry. The comments did include widespread support for MSHA to 
provide educational information and resources that would allow mine 
operators the flexibility to develop programs tailored to the needs of 
their workers and specific worksites.

[[Page 52141]]

C. Basis of Proposal

    Mining is inherently dangerous and the misuse of alcohol and drugs 
increases the risk of accident, injury, or death. It is reasonable to 
expect that any diminution of a miner's attentiveness, concentration, 
dexterity, balance, or reaction time could play a contributing, if not 
causative, role in an accident. No one disputes that a miner who is 
under the influence of alcohol and/or drugs is an unacceptable safety 
risk. Though some mine operators have programs in place to address this 
hazard, the implementation of alcohol- and drug-free mine programs is 
far from universal. There is a need for consistency and uniformity 
across all types of mining environments (whether coal or metal/
nonmetal, surface or underground) with regard to the regulatory 
prohibitions against alcohol and drugs.
    The proposed rule would provide a consistent baseline for the 
mining industry and afford safety for all miners. Only two states 
currently require such programs, and even those requirements are 
inconsistent. Although both Virginia and Kentucky test miners for 
eleven drugs, only Kentucky tests for alcohol. The question could be 
posed as to why miners in Virginia should have to work in environments 
that could be less safe than those in Kentucky where more comprehensive 
testing programs are in place. Also, unregulated mines in states 
bordering those with laws could attract miners who want to avoid 
testing programs, thus increasing their chances of experiencing 
avoidable accidents and other safety hazards. Inconsistencies also 
exist within MSHA's current standard prohibiting the use of 
intoxicating beverages and narcotics in or around mines. The current 
standard applies only to metal and nonmetal mines, but not to coal 
mines. This proposal would bring consistency for alcohol- and drug-
testing and treatment referral and offer the same measure of safety for 
all miners in all states.
    The proposal is intended to prevent the safety risks that can 
result from the use of alcohol and drugs by those who work on mine 
property. Thus, under the proposed rule, possession of alcohol or drugs 
on mine property as well as any use of alcohol or drugs that might 
compromise safety while working in safety-sensitive job duties (i.e., 
activities where a lapse of critical concentration could result in an 
accident, serious injury, or death) is prohibited.
    Alcohol- and drug-testing is a common practice in many industries, 
and most private sector employers have a great deal of latitude about 
whether to drug test and how to do so. Several federal agencies 
(including the Departments of Defense and Energy, the Nuclear 
Regulatory Commission, and the National Aeronautics and Space 
Administration) have regulations that require contractors, grantees, 
and licensees to have fitness-for-duty requirements or drug-free 
workplace programs that include a variety of testing requirements, such 
as pre-employment, random, post-accident, and reasonable suspicion 
testing. The U.S. Department of Transportation (DOT) requires alcohol- 
and drug-testing of over 12 million workers performing designated 
safety-sensitive job duties in the aviation, trucking, railroad, mass 
transit, and pipeline industries and has codified its testing program 
requirements at 49 CFR part 40 (``part 40''). The Coast Guard, which 
began requiring alcohol- and drug-testing when it was an agency under 
DOT, has continued to require testing that follows DOT part 40 even 
though it is now under the Department of Homeland Security.
    Because of the Government's interest in public safety, DOT 
developed and implemented alcohol- and drug-testing regulations 
covering the transportation industry in 1989 in the absence of specific 
authority to do so. Subsequently, Congress passed the Omnibus 
Transportation Employee Testing Act of 1991 that requires 
transportation industry employers who have covered employees (i.e., 
employees in safety-sensitive positions) to have drug-free workplace 
programs which include both alcohol- and drug-testing. Similarly, many 
of the jobs in mines are safety-sensitive in that a momentary lapse of 
attention at a critical moment could cause significant injury not only 
to the individual but to many others. Thus, it is reasonable to expect 
that MSHA would act to ensure that, while on the job, miners are 
protected from alcohol and drug misuse of their colleagues. 
Furthermore, making alcohol- and drug-testing a standard part of an 
accident investigation and reporting the results would go a long way 
toward providing better information about the extent to which alcohol 
and drug use contributes to accidents in the mining industry.
    The proposed rule would give needed guidelines, procedures, and 
training materials to mine operators who have not yet adopted or 
implemented a drug-free mine program. This proposal would incorporate 
the DOT part 40 testing procedures. While there are some variations 
based on identified needs within the mining industry, the proposed rule 
requires testing under the same circumstances as DOT (pre-employment, 
random, post-accident, and reasonable suspicion). Similarly, the 
proposed rule requires removal from the performance of safety-sensitive 
job duties and follows the same process of referring miners who test 
positive to Substance Abuse Professionals (SAP) and requiring return-
to-duty and follow-up testing in order to resume performance of safety-
sensitive job duties. The proposed employee and supervisor training 
requirements are also similar in content to the DOT rule and are 
intended to help the mine operator, supervisors, and miners recognize 
and know how to handle the signs of alcohol and drug use in the mine so 
that workers who are intoxicated or under the influence can be removed 
from the job site and sent for testing when indicated.

IV. Section-by-Section Discussion

    Summary of Rule: The proposed rule would be 30 CFR subchapter N 
(Uniform Mine Safety Regulations) part 66 and would replace the 
existing metal and nonmetal standards at 30 CFR 56.20001 and 57.20001. 
This subchapter establishes safety regulations that apply to all mines: 
Coal and metal/nonmetal; surface and underground.
    MSHA recognizes that the existing regulations found at 30 CFR 
56.20001 and 57.20001 have shortcomings in that the existing provisions 
do not specify what substances are prohibited or require employers to 
take action when miners violate the regulations. Nor do the regulations 
require mine operators to train miners about the dangers that alcohol 
and drug use can bring into the mining environment. This proposed rule 
seeks to address these shortcomings and provide clear and actionable 
guidance for mine operators.
    The proposed rule would prohibit possession of alcohol or drugs on 
mine property; prohibit the use of or impairment from alcohol and a 
specific array of drugs; require alcohol- and drug-testing of miners 
who perform safety-sensitive job duties and their supervisors; and 
require that mine operators implement alcohol- and drug-free mine 
programs that consist of a written policy, employee education, 
supervisory training, alcohol- and drug-testing for miners that perform 
safety-sensitive job duties and their supervisors, and referrals to 
assistance for miners who violate the policy.
    The proposed rule defines safety-sensitive job duties and specifies 
that those performing or supervising such duties would be subject to 
alcohol- and drug-testing under the following circumstances: Pre-
Employment;

[[Page 52142]]

randomly at unannounced times; post-accident if the miner may have 
contributed to the accident; based on reasonable suspicion that a miner 
has used a prohibited substance; and as part of a return-to-duty 
process for miners who have violated the rule. At a minimum, testing 
would be performed for the following: Alcohol, amphetamines (including 
methamphetamines), barbiturates, benzodiazepines (e.g., Valium, 
Librium, Xanax), cannabinoids (THC/marijuana), cocaine, methadone, 
opiates (heroin, opium, codeine, morphine), phencyclidine (PCP), 
propoxyphene (e.g., Darvon), and synthetic and semi-synthetic opioids 
(hydrocodone, hydromorphine, oxymorphone, and oxycodone). Testing would 
also be required for any additional drugs subsequently designated by 
the Secretary of Labor, and nothing in the rule restricts mine 
operators from testing for additional drugs beyond those for which the 
rule requires testing.
    The proposed rule would require mine operators, at a minimum, to 
remove those miners who violate the prohibitions from the performance 
of safety-sensitive job duties until the miner completes the 
recommended treatment and their alcohol- and drug-free status is 
confirmed by a return-to-duty test. Although the proposed rule requires 
mine operators to provide one opportunity for those violating the rule 
to get help and retain their job, it leaves it to the mine operator to 
determine the disciplinary consequences for subsequent violations. The 
alcohol- and drug-testing and return-to-duty procedures are specified 
in the proposed rule. Alcohol- and drug-testing would need to be 
conducted consistently with procedures incorporated by reference from 
DOT part 40, except in those places where specifically modified by this 
rule.
    Effective Date and Implementing Language: The proposed rule would 
allow mine operators who do not have an existing alcohol- and drug-free 
mine program in place one year from its effective date to implement its 
requirements. In the event a mine operator already has an alcohol- and 
drug-free mine program in place that tests for at least the substances 
specified by the rule, the mine operator would be considered to be in 
compliance with the proposed rule provided the prohibitions and 
training requirements are consistent with those in the rule even if 
differing drug-testing technologies are being used. However, mine 
operators with pre-existing drug-free mine programs would need to come 
into compliance with all requirements of the rule, including drug-
testing procedures and technologies, within two years of the rule's 
effective date. The rule would not require mine operators to conduct 
pre-employment testing of incumbent workers, except prior to moving a 
worker from a position that does not involve the performance of safety-
sensitive job duties to a position that does require the performance of 
such duties. The proposed rule would require its training requirements 
for supervisors and miners to be met within 30 days of implementation 
of the mine's drug-free workplace program.
    The decision to allow a phase-in of the new requirements is based 
on MSHA's desire to allow the mining industry adequate time to 
understand and implement the new regulatory provisions. MSHA considers 
one year to be an appropriate timeframe for the industry to reach 
compliance, given that many large mine operators already have drug-free 
mine and drug-testing programs in place, and that MSHA intends to 
provide significant compliance assistance tools, including policy 
templates and training materials, to the many small mine operators who 
do not already have such programs. The decision to consider existing 
programs as in compliance with the rule for a two-year period is based 
on the desire to minimize the regulatory burden to mine operators that 
already have programs deemed effective and in keeping with the purpose 
of this proposed rule. MSHA invites comments about the proposed amount 
of time allowed for implementation.

Subpart A--General

Section 66.1 Purpose

    This rule is intended to protect mining's most precious resource--
the miner--by preventing accidents, injuries, and fatalities at the 
mine associated with the misuse of alcohol and drugs. The rule would 
require mine operators to establish programs designed to help prevent 
accidents, injuries, and fatalities that could result from miners being 
under the influence of alcohol and/or drugs while on the job.

Section 66.2 Applicability

    The mine operator would be responsible for compliance with these 
alcohol and drug requirements which apply to all miners performing 
safety-sensitive job duties and their supervisors. All coal and metal/
nonmetal, surface and underground mines would be covered by the 
proposed rule. If the misuse of alcohol/drugs is seen as compromising 
safety in metal/nonmetal mines and therefore require regulation 
(Sections 56.20001 and 57.20001), then alcohol and drugs should be 
similarly regarded as having the potential to compromise safety in coal 
mines.
    In response to the ANPRM's request for opinions on whether or not 
to revise the existing metal and nonmetal standard, which states that 
intoxicating beverages and narcotics shall not be permitted or used in 
or around mines and persons under the influence of alcohol or narcotics 
shall not be permitted on the job, there was general agreement among 
commenters that any revision of this standard, or any new standard, 
should address both the coal and metal/nonmetal sectors. In addition, 
the rule would apply to all mine operators, regardless of size of 
workforce, as a way to ensure increased protection for all miners. 
Commenters to the ANPRM expressed a view that it would be unfair for 
the rule's prohibitions to be applied selectively.
    MSHA recognizes that the overall responsibility for mine safety 
rests with mine operators. MSHA also understands that miners play a key 
role in achieving mine safety and health. Thus, the alcohol- and drug-
testing and training provisions would have applicability to both mine 
operators and those miners who perform safety-sensitive job duties and 
their supervisors.
    Although the general prohibitions against using or possessing 
alcohol and/or drugs while on mine property apply to everyone working 
at mines, the alcohol- and drug-testing and training provisions of the 
proposed rule would apply only to workers assigned to perform safety-
sensitive job duties and their supervisors. This limitation of coverage 
is intended to strike a balance between MSHA's statutory responsibility 
to protect the safety of miners and a desire not to propose blanket 
requirements applicable to miners who do not perform safety-sensitive 
job duties.
    Another issue that MSHA considered in specifying the applicability 
of the rule is that of whether the rule and all of its requirements 
should apply to anyone performing safety-sensitive job duties, even if 
for a brief amount of time, or whether the rule should apply only to 
those who regularly or routinely perform safety-sensitive job duties. 
To be consistent with other safety requirements, MSHA proposes that the 
alcohol- and drug-testing and training requirements will apply to all 
those required to take comprehensive safety training under 30 CFR parts 
46 and 48 (``part 46/48''), since they already take into consideration 
the frequency and

[[Page 52143]]

regularity of exposure to safety hazards in the mines. MSHA seeks 
comments about the determination of who performs safety-sensitive job 
duties and is, therefore, required to be tested and trained.

Section 66.3 Definitions

    Because this proposed rule uses a number of terms that have 
specific meanings in the context of the implementation of alcohol- and 
drug-free workplace programs, this section of the proposed rule defines 
and clarifies the key terms used in the Uniform Mine Regulations found 
at 30 CFR Subchapter N, part 66.

Subpart B--Prohibitions

Section 66.100 Prohibited Substances

    This section designates the substances that shall not be permitted 
in or around mine property and that cannot be used while performing 
safety-sensitive job duties, except, in the case of prescription 
medications, when they are used as authorized by a physician.
    Consistent with the DOT rule and with all other federal drug-free 
workplace requirements, MSHA's proposed rule would prohibit the use, 
and require testing for, the following five controlled substances 
(commonly known as illicit drugs or the ``SAMHSA-5''):
     Amphetamines (including methamphetamines),
     Cannibinoids (marijuana/THC),
     Cocaine,
     Opiates (e.g., heroin, opium, codeine, morphine), and
     Phencyclidine (PCP).
In addition, it is proposed that the unauthorized use of the following 
controlled substances also be prohibited:
     Barbiturates,
     Benzodiazepines (e.g., Valium, Librium, Xanax),
     Methadone,
     Propoxyphene (e.g., Darvon), and
     Synthetic and semi-synthetic opioids (i.e., hydrocodone, 
hydromorphone, oxymorphone, oxycodone).
    Consistent with DOT safety regulations, MSHA also proposes 
prohibiting being under the influence of, using, or possessing alcohol 
on mine property.
    Because new drugs emerge that can be subject to abuse, and trends 
change as to what drugs are widely abused, the proposed rule includes 
an opportunity for additional substances to be added to the list of 
prohibited substances as designated by the Secretary.
    Under the Controlled Substances Act it is illegal for individuals 
to use any of the proposed controlled substances, except when used 
pursuant to a valid prescription, regardless of where a person is at 
the time of use. Thus, the proposed rule's prohibition simply reflects 
existing federal law.
    It is widely recognized that using illicit drugs or misusing 
prescription drugs can alter a person's ability to function, make 
decisions, and exercise the judgment necessary to ensure their safety 
and that of those around them when working in the mining environment. 
It is also widely recognized that alcohol, despite being legal, can 
impact a person's ability to work safely in a high-hazard environment.
    The ANPRM asked for information, evidence-based or anecdotal, about 
which substances are used most prevalently by miners and create the 
most significant safety hazards at mines. A number of commenters, 
including mine operators and industry trade associations, specifically 
mentioned that the following drugs were prevalent and of concern: 
Alcohol, marijuana, cocaine, opiates, methamphetamines and prescription 
painkillers, notably methadone and oxycodone.
    Commenters' concerns about prescription painkillers reflect recent 
data that indicate they are a growing problem. According to the 2006 
National Survey on Drug Use and Health (NSDUH), prescription drug 
misuse was the second-ranking drug threat in terms of prevalence, with 
7.0 million (2.8 percent) persons aged 12 or older using prescription-
type psychotherapeutic drugs non-medically in the past month. Of these, 
5.2 million used pain relievers, an increase from 4.7 million in 2005. 
Furthermore, past month non-medical use of prescription-type drugs 
among young adults increased from 5.4 percent in 2002 to 6.4 percent in 
2006. This was primarily due to an increase in the rate of pain 
reliever use, which was 4.1 percent in 2002 and 4.9 percent in 2006. 
However, non-medical use of tranquilizers also increased over the five-
year period (from 1.6 to 2.0 percent). Furthermore, data from Quest 
Diagnostics' Drug Testing Index[reg] indicate that positive workplace 
drug results for amphetamines--stimulants that can include prescription 
drugs or diet aids--increased more than 7 percent from 2006 to 2007.
    The Final Report of the Mine Substance Abuse Task Force, issued in 
December 2005, indicates that rates of prescription drug misuse in the 
Appalachian mining region may be higher than the national findings. The 
task force was charged with gathering and evaluating pertinent 
information on alcohol and drug abuse and its impact on the health and 
safety of miners in Virginia, West Virginia, and Kentucky and 
developing recommendations for state and federal agencies and the 
mining industry. During the group's deliberations, testimony indicated 
drug dependency among miners can develop from the legitimate use of 
prescribed painkillers. This was further supported by a Virginia 
Department of Health report that identified the average drug abuser in 
southwest Virginia as a 37-year-old male with a history of drug abuse 
and treatment for pain or chronic illness, with nearly one-fourth of 
abusers working in construction or mining jobs.
    Based on its findings, the Mine Substance Abuse Task Force 
recommended in its Final Report a testing protocol that included 
illegal drugs, alcohol, and prescription drugs used illegally or in 
excess of therapeutic levels. Furthermore, when the International 
Brotherhood of Boilermakers, a union representing 65,000 workers in a 
variety of trades, including mining, implemented a drug-testing program 
for its members in 1995, it chose to test for presence of illegal drugs 
as well as misuse of prescription drugs. Since that time, the union 
reports decreased worksite accidents involving its members. A similar 
program operated by the International Association of Bridge, 
Structural, Ornamental and Reinforcing Iron Workers also tests members 
for prescription drug misuse.
    Furthermore, the U.S. Drug Enforcement Administration (DEA) has 
reported that counties in eastern Kentucky lead the nation in terms of 
grams of narcotic pain medications distributed on a per capita basis, 
and that aside from marijuana cultivation and trafficking, the 
trafficking and misuse of prescription drugs may be the most 
significant current drug threat within the Appalachia High Intensity 
Drug Trafficking Area (HIDTA), which encompasses counties in Kentucky 
and West Virginia.
    Commenters to the ANPRM expressed concern not only about the non-
medical use of prescription painkillers, but also about the impact that 
even legally used prescription medications could have on functioning 
and whether individuals on such painkillers can safely operate mining 
equipment. Also, most commenters, including those representing trade 
associations, mine operators, and miners, specifically referenced 
alcohol. Although the proposed rule does not prohibit the use of 
prescription drugs that may have

[[Page 52144]]

impairing side effects, as long as they are being prescribed by a 
physician, MSHA is interested in further comments about experiences and 
concerns about the use of such substances in mining.
    According to the ``Worker Substance Use and Workplace Policies and 
Programs'' report prepared by SAMHSA, alcohol problems are 50 percent 
more prevalent in the mining industry than in other industries.
    The intent of the proposed rule is to improve safety in the 
nation's mines. MSHA proposes to prohibit misuse of alcohol and 
prescription drugs and use of drugs on mine property based on their 
known incompatibility with safe working conditions as well as 
observations from the industry and data indicating a high prevalence of 
such behavior in mining regions. At the same time, MSHA recognizes that 
drugs of concern may vary from location to location and change over 
time. It is MSHA's desire to establish a standard addressing specific 
drugs, but the agency also wishes to allow for flexibility should other 
drugs not specified in this rule threaten worker safety. MSHA seeks 
comments on the list of drugs that are specifically identified as 
prohibited substances and the means for maintaining flexibility to 
include additional drugs as the need arises. Public comment also is 
sought from individuals and entities that have experience and data 
regarding the specific drug compounds to be tested for within these 
drug groups and classes; the target parent drug and/or metabolite(s) to 
be tested for; the quantitated concentrations of these drugs and/or 
metabolites to determine an initial test presumptive positive result 
and a separate confirmed test result; along with the best practices and 
recommendations for training and certification of Medical Review 
Officers (MRO) in reviewing the laboratory test results for miners and 
differentiating use in accordance with a valid medical prescription 
versus illicit use.

Section 66.101 Prohibited Behaviors

    This section would specify the prohibited behaviors and what is 
considered evidence of those behaviors, and thus a violation of the 
rule. Under the proposed rule the possession and use of prohibited 
substances on or around mine property is not permitted, unless the 
miner possesses a valid prescription that requires use while on mine 
property. In addition, reporting for or remaining on duty under the 
influence of or impaired by these substances would be prohibited under 
the proposed rule. A Blood Alcohol Concentration (BAC) level of 0.04 
percent or greater would be considered verification of being under the 
influence of or impaired by alcohol, and a positive drug test above the 
cut-off levels, without a legitimate medical explanation, would 
constitute verification of use of a prohibited substance. MSHA proposes 
using the same BAC level for alcohol and cut-off levels for other 
substances as are used by DOT to indicate the levels at which a 
violation of the rule is considered to occur. However, in order to 
simplify the procedures and minimize confusion, MSHA has chosen not to 
adopt the bifurcated system used by DOT which requires temporary 
removal from performing safety-sensitive job duties if the BAC level on 
an alcohol test is between .02 and .039. MSHA believes that enforcing 
the 0.04 percent BAC level, which is well below what is considered 
under the influence by state laws governing driving under the 
influence, is sufficiently protective.
    As MSHA's regulatory authority relates to safety, the proposed rule 
is intended to prevent possession and misuse of alcohol or drugs that 
negatively impact mine safety. It is important to note that this 
qualification may also relate to the use of these substances off of 
mine property, for example, prior to starting a work shift, since the 
use of prohibited substances could have extended effects that persist 
on the job, and therefore compromise safety. Thus, any misuse of 
prohibited substances that would result in effects that can compromise 
safety while working would constitute a violation of the rule.
    The proposed rule would also prohibit miners from refusing to 
submit to an alcohol or drug test or attempting to alter the results of 
such a test. The inclusion of this provision follows the DOT model and 
is necessary in order to maintain the integrity of the rule's intent 
and its effectiveness.

Subpart C--Drug-Free Mine Program Requirement

Section 66.200 Purpose and Scope

    The proposed rule would require each mine operator to implement the 
following five elements of an alcohol- and drug-free program: A written 
policy, employee education, supervisory training, alcohol- and drug-
testing for miners that perform safety-sensitive job duties and their 
supervisors, and referrals to assistance for miners who violate the 
policy. A sample model alcohol- and drug-free mine policy statement and 
samples of training materials are available from MSHA or the Web site 
at http://www.msha.gov.
    Even absent a regulation requiring such a program, commonly called 
a drug-free workplace program, many mine operators have voluntarily 
implemented them. In fact, many, including several that responded to 
the ANPRM, report that these programs have improved workplace safety 
and reduced workers' compensation costs and non-fatal days lost. Some 
commenters to the ANPRM also said a perception exists among miners with 
alcohol and/or drug problems that absent such a program there are no 
real consequences of their behavior and therefore, the scope of the 
problem is larger at mines without programs in place. While some miners 
will not be dissuaded from using prohibited substances by any efforts, 
some commenters felt that adoption of drug-free mine programs explains 
why fewer positive tests are seen in their operations and why miners 
who have tested positive in the past choose to remain clean. Thus, MSHA 
believes that having programs in place at all mines would be in the 
best interest of all miners in order to improve safety.
    The elements of a drug-free mine program that would be required by 
the proposed rule reflect the well-established ``five-step'' model the 
federal government has used for its own drug-free workplace program 
since the 1980s and encourages private sector organizations to adopt 
through advisory programs run by both the U.S. Department of Labor and 
the U.S. Department of Health and Human Services/Substance Abuse and 
Mental Health Services Administration. Many of the mine operators 
responding to the ANPRM described the adoption of these elements.

Section 66.201 Written Policy

    A written policy forms the foundation for a drug-free mine program. 
The proposed rule would require each mine operator to develop a written 
policy and provide it to all miners covered by the rule. Each mine's 
policy could be tailored; however, each one would, at a minimum, 
address the purpose of the rule and policy; contain a clear description 
of the prohibited behaviors under the rule; outline the means, 
including testing, for determining if the policy has been violated; 
include an explanation of the consequences for violating the policy; 
and requirements for training. It was generally agreed upon by ANPRM 
commenters that a policy is the most logical vehicle for clearly 
communicating to miners what is expected of them. Written policies are 
standard practice for safety policies in mining as well as other 
industries.

[[Page 52145]]

    Furthermore, MSHA intends to assist mine operators in developing 
their policy by providing a sample template that can be used to address 
all required elements that can be tailored to include optional elements 
at the mine operator's discretion. A mine operator must ensure that 
every miner has been informed of the policy. The proposed rule requires 
that a mine operator must provide a copy of the written policy to the 
miners' representative or post the policy on a bulletin board in a 
common area in the event that the miners' do not have a representative. 
Mine operators may also choose to distribute the policy during the 
alcohol and drug-free awareness training sessions or distribute the 
policy in an electronic format; however, these additional means of 
distribution are not required. The rule would require that the policy 
be reviewed during training sessions and made available upon request. 
MSHA invites comments on how the policy should be provided to miners.

Section 66.202 Education and Awareness Program for Nonsupervisory 
Miners

    Under this section of the proposed rule each mine operator would be 
required to implement an education and awareness program for 
nonsupervisory miners to provide them with the information they need to 
fully understand and comply with the rule. Those miners currently 
required to take comprehensive safety training under parts 46 and 48 
would be required to take the training required by the proposed rule. 
The proposed required amount of time for this training would be 60 
minutes for new hires and 30 minutes annually for all nonsupervisory 
miners. Topics addressed would include a review of the policy 
requirements; generalized information about the nature of alcoholism 
and drug addiction; its impact on work performance, health, and 
personal life; and types of help available for individuals with alcohol 
and/or drug problems.
    Many commenters to the ANPRM support this type of training for 
miners. One commenter from the workplace drug prevention field stressed 
the importance of educating miners so that they fully understand the 
safety issues regarding alcohol and drug abuse rather than simply 
preaching about how bad alcohol and drugs can be. Another commenter, a 
safety director for a coal company, felt that education was important 
to encourage those with alcohol or drug problems to seek help, but 
cautioned against modifying MSHA's existing training requirements. By 
contrast, a number of other commenters from within the mining industry 
specifically suggested such training should be incorporated into MSHA's 
existing training.
    Although concerned about the number of required topics that already 
must be covered under parts 46 and 48, MSHA believes that it is 
appropriate to include education on alcohol and drug awareness in the 
required safety training both for new miners and as part of the annual 
refresher training. However, the proposed rule would require that the 
time allotted to this training be added to the total number of hours 
required under parts 46 and 48 so that there is sufficient time to 
cover all necessary training topics. The ANPRM did not specifically ask 
the public to comment on how much time should be dedicated to new miner 
and annual refresher training on alcohol and drugs, or the specific 
training media or methods that would be most suitable, and few 
commenters volunteered such information in their comments. MSHA is 
proposing to follow the standard established by the state of Kentucky, 
which requires 60 minutes of initial substance abuse training for new 
miners. This is also consistent with the Federal Transit Administration 
(FTA) requirement of 60 minutes of initial training on the alcohol- and 
drug-testing rule. In addition, MSHA is proposing 30 minutes annually 
thereafter for nonsupervisory miners to review the requirements and to 
remind miners of help that is available. MSHA believes this is 
appropriate given the need to regularly remind miners of the necessity 
of following any other safety practice. Furthermore, it is believed 
that doing so annually may encourage those with problems to seek help 
before they violate policy or create safety hazards. MSHA invites 
comments about the amount of employee education that is needed.
    The proposal would require that the training be delivered by a 
competent person knowledgeable about workplace substance abuse, this 
rule's requirements, and the mine operator's policy. MSHA has already 
developed a number of materials that can be used to fulfill this 
employee education requirement. However, the training may be delivered 
using various technology or methods. Videos or other audio-visual 
materials may be used to supplement interactive training but cannot be 
used as a sole means of training.
    MSHA invites comments about the amount and type of training for 
nonsupervisory miners and about the methods appropriate for delivering 
this training and also about the best means for assuring that training 
is delivered by qualified personnel.

Section 66.203 Training Program for Supervisors

    Under this section of the proposed rule each operator would be 
required to implement a training program for supervisors to make them 
aware of their responsibilities in ensuring compliance with the rule; 
recognize and deal with miners who have performance problems that may 
be related to alcohol and/or drugs; understand how to refer miners to 
available assistance; and know how to make determinations for requiring 
a reasonable suspicion or post-accident test.
    The majority of commenters to the ANPRM support this type of 
training. Of particular note was concern that if supervisors are 
responsible for making referrals for alcohol- and/or drug-testing based 
on reasonable suspicion, they must be adequately trained on how to make 
that determination. Several mine operators who commented said they 
already have a training program for supervisors and provided 
information about their programs.
    MSHA is proposing that a minimum of two hours of initial training 
be provided to each supervisor with an additional one hour of training 
annually thereafter. The proposal would require that the training be 
delivered by a competent person knowledgeable about workplace substance 
abuse, this rule's requirements, and the mine operator's policy. MSHA 
has already developed a number of materials that can be used to fulfill 
this employee education requirement. However, the training may be 
delivered using various technology or methods. Videos or other audio-
visual materials may be used to supplement interactive training but 
cannot be used as a sole means of training.
    MSHA invites comments about the amount and type of training for 
supervisors and about the methods appropriate for delivering this 
training and also about the best means for assuring that training is 
delivered by qualified personnel.
    Although all those who are in a position to observe and direct the 
work activities of others may have opportunities to discover reasons to 
suspect a miner is misusing substances, and hence benefit from 
reasonable suspicion training, it may not be wise to spread the 
authority to initiate such tests too broadly. MSHA proposes to leave it 
to the mine operators to determine who must receive this training. MSHA 
seeks comments on this proposal.

[[Page 52146]]

Section 66.204 Miner Assistance Following Admission of Use of 
Prohibited Substances

    This section of the rule discusses actions that must be taken by 
mine operators following the admission of use of prohibited substances 
by miners. Mine operators are required to make such miners aware of 
available assistance through an employee or miner assistance program, a 
Substance Abuse Professional (SAP), and/or other qualified community-
based resources.
    MSHA recognizes the desire of mine operators to retain skilled 
miners who address and subsequently recover from their alcohol and/or 
drug problems. Information received in response to the ANPRM and 
anecdotally from the 2004 Summit and other sources suggests that mine 
operators may be able to return certain miners to work without 
compromising safety if they have taken advantage of access to 
appropriate treatment, continuing care, and supportive services. 
Several mine operators with existing Employee Assistance Programs (EAP) 
reported an approximately 50 percent success rate.
    It is MSHA's intention to encourage miners to voluntarily seek 
assistance, but not to allow them to do so to avoid testing or other 
requirements under the proposed rule. MSHA invites comments on this 
provision. Because MSHA believes that alcohol and drug use is a serious 
safety problem and that addiction is a treatable disease, recognizes 
that mine operators need to retain experienced miners, and understands 
the critical roles mines play in the vitality of their local economies, 
MSHA seeks comments about the extent to which third party health 
benefits are available to cover the cost of SAP and treatment services 
for miners covered by the rule. MSHA also seeks comments on all aspects 
of the miner assistance provisions required by this rule.

Subpart D--Alcohol- and Drug-Testing Requirements

Section 66.300 Purpose and Scope

    Although the ANPRM did not specifically ask for comments about the 
advisability of alcohol- and drug-testing, it did ask for comments 
about how impairment from prohibited substances should be determined. 
Drug-testing was the majority response, although some commenters noted 
that drug-testing in and of itself does not determine impairment, most 
commenters agreed that testing can be an effective deterrent to being 
impaired on the job, which ultimately is the positive effect desired.
    Based on ANPRM comments received, as well as anecdotal information 
from the 2004 Summit, MSHA believes that alcohol- and drug-testing is 
an effective deterrent to impairment on the job, and therefore section 
66.303 of the proposed rule would require mine operators to conduct 
alcohol- and drug-testing in certain specified circumstances. Similar 
drug-testing rules for miners were recently adopted by the states of 
Virginia and Kentucky. Furthermore, drug-testing is a safety practice 
widely used by many private-sector operators, particularly those in 
industries considered high hazard, and data indicate its positive 
effects. Notably, a study of the construction industry workplaces that 
conduct drug-testing revealed that they experienced a 51 percent 
reduction in injury rates (from 8.92 incidents per 200,000 down to 4.36 
incidents per 200,000) within two years of implementation, compared 
with a 14 percent average decline in injury rates among construction 
companies in general.\23\
---------------------------------------------------------------------------

    \23\ Minchin, Jr., R.E., Glagola, C.R., Guo, K. and Languell, 
J.L. ``Case for Drug Testing of Construction Workers,'' Journal of 
Management in Engineering 22.1 (January 2006): 43-50.
---------------------------------------------------------------------------

    Although there is widespread recognition among commenters about the 
merits of alcohol- and drug-testing, there were many concerns expressed 
about the various types of alcohol- and drug-testing and the exact 
procedures to be used. These specific concerns are discussed in the 
preamble relative to each type of testing that MSHA is proposing. Some 
ANPRM comments, including those from union representatives and trade 
associations, opposed any regulatory requirement for mine operators to 
conduct alcohol- and drug-testing. For example, a representative from 
the UMWA expressed skepticism that an alcohol- and drug-testing rule 
was necessary, citing the lack of data showing that alcohol or drugs 
significantly contribute to mining accidents and opines that such a 
rule would be unenforceable. Although he did not expressly state an 
opposition to alcohol- and drug-testing, he did suggest that to be 
effective, MSHA should do the testing itself rather than relying on the 
mine operators to do so. Many commenters representing mine operators 
expressed confidence in existing company alcohol- and drug-testing 
programs and felt there was no need for MSHA to impose a burdensome 
requirement in this area.
    MSHA proposes to incorporate the DOT part 40 alcohol- and drug-
testing procedures. Mine operators should read ``MSHA'' where these 
procedures refer to ``DOT.'' Consistent with DOT part 40, MSHA is 
offering mine operators the option to use service agents to perform the 
functions required by this subpart including services for collection of 
urine specimens, a certified Breath Alcohol Technician (BAT), a 
laboratory, Medical Review Officer (MRO), and a Substance Abuse 
Professional (SAP). The proposed rule includes definitions for the 
various types of service agents. However, MSHA, unlike DOT part 40, 
proposes testing for ten substances rather than five.
    The proposed rule's requirements prescribe breath testing for 
alcohol and urine collection procedures for drug-testing; however, it 
is MSHA's intent to follow the U.S. Department of Health and Human 
Services' (HHS) lead should alternative testing procedures be approved 
for federal programs. MSHA is aware that some mine operators are 
already testing using alternative methods such as point of collection 
devices and alternative specimens and seeks comments and information on 
what their experience has been. This information will help MSHA 
determine whether existing mine operator programs differ significantly 
from proposed requirements.
    The proposed rule contains a requirement that mine operators use 
only HHS-certified laboratories to test collected samples. HHS-
certified laboratories must comply with the applicable provisions of 
HHS' Mandatory Guidelines for Federal Workplace Drug Testing Programs 
concerning accessioning and processing urine specimens. These 
provisions require laboratories to conduct validity testing to 
determine whether certain adulterants or foreign substances have been 
added to the specimen to mask or destroy the drug or drug metabolite 
that the specimen may contain as well as determine if the specimen was 
diluted. However, since HHS currently only certifies laboratories to 
test for the five illicit drugs for which federal agencies test, MSHA 
also proposes to require that laboratories that conduct testing under 
this rule be certified by the College of American Pathology (CAP) to 
perform Forensic Urine Drug Testing for the additional substances 
specified by this rule.
    Although MSHA proposes to adopt DOT part 40 requirements, it does 
not propose to monitor or review the performance of service agents, 
including laboratories, used by mine operators to comply with the 
rule's requirements. Rather, MSHA intends for mine operators to 
contract with service agents who deliver quality services, possess 
appropriate certifications, and follow

[[Page 52147]]

part 40 requirements for the collection, processing, and analysis of 
specimens and the reporting of results. By relying on experienced and 
qualified service agents who adhere to and are being monitored by 
existing HHS and DOT standards, MSHA believes that the accuracy, 
validity, reliability, and integrity of the testing process will be 
maintained.

Section 66.301 Substances Subject to Mandatory Testing, and Section 
66.302 Additional Testing

    These sections identify the substances for which testing would be 
required. They are alcohol and ten drugs: amphetamines (including 
methamphetamines), barbiturates, benzodiazepines (e.g., Valium, 
Librium, Xanax), cannabinoids (marijuana/THC), cocaine, methadone, 
opiates (e.g., heroin, opium, codeine, morphine), phencyclidine (PCP), 
propoxyphene (e.g., Darvon), and synthetic and semi-synthetic opioids 
(hydrocodone, hydromorphone, oxymorphone, and oxycodone). This ``ten-
panel'' drug test is commonly used and both Virginia and Kentucky state 
laws already require testing of miners for these drugs. The decision to 
include these drugs is based in part on indications from commenters to 
the ANPRM who have extensive experience in the alcohol- and drug-
testing field. Commenters in the mine industry also highlighted the 
need to address alcohol and prescription drug abuse. Findings from 
federal drug-use surveys and 2008 data from the Quest Drug Testing 
Index[reg] show that prescription drug-abuse is rising in the 
workforce, substantiating other ANPRM comments. It is worth noting that 
many private industry employers, including numerous mine operators, 
already test for these drugs. As previously indicated, HHS/SAMHSA has 
already established workplace drug-testing cut-off values for 
amphetamines, cannabinoids, cocaine, opiates, and phencyclidine, which 
are commonly referred to as the ``SAMHSA-5.'' At present, there are no 
federal workplace drug-testing standards for barbiturates, 
benzodiazepines, propoxyphene, methadone, or synthetic/semi-synthetic 
opioids, all of which can be legally prescribed.
    Testing for abuse of prescription drugs is complicated, in that 
determinations of abuse can only be made after ascertaining: (1) 
Whether the individual being tested has a legitimate prescription; and 
(2) if a legitimate prescription exists, whether the individual is 
using the medication in accordance with the prescriber's instructions. 
In many instances, this is a case-by-case determination that can only 
be made by examining the half-life \24\ of the medication; the 
prescribed dosage; and the individual's metabolic rate, and comparing 
this information to the amount of medication in an individual's system 
at the time of testing. Any deviations from the expected levels may 
indicate possible abuse. Various laboratories and industries have 
developed testing cut-off levels based on the concentration levels at 
which these substances can be detected via urine testing. Although each 
case will require individual analysis, MSHA has proposed cut-off levels 
based on the range of levels being used by major laboratories and 
industries currently testing for these substances. The tables below 
show commonly used cut-off levels for these substances.
---------------------------------------------------------------------------

    \24\ This is the period of time required for the concentration 
or amount of drug in the body to be reduced by one-half.
---------------------------------------------------------------------------

Screening

----------------------------------------------------------------------------------------------------------------
                                                                                                     European
                                                                        DOL            Quest         workplace
                                                                  (proposed) (ng/   Diagnostics   standards (ng/
                                                                        ml)           (ng/ml)        ml) \25\
----------------------------------------------------------------------------------------------------------------
Screening
    Barbiturates................................................             300             300             200
    Benzodiazepines.............................................             300             300             200
    Propoxyphene................................................             300             300             300
    Methadone...................................................             300             300             300
    Synthetic and Semi-synthetic Opioids........................             300             (*)             n/a
Confirmation
    Barbiturates................................................             200             200             150
    Benzodiazepines.............................................             200             200             100
    Propoxyphene................................................             200             200             300
    Methadone...................................................             200             200             300
    Synthetic and Semi-synthetic Opioids........................             300             (*)             n/a
----------------------------------------------------------------------------------------------------------------
* Varies.

    Data on cut-off levels for other synthetic and semi-synthetic 
opioids were less readily available. Six laboratories offering urine 
testing for oxycodone can detect levels of 100 ng/ml of this substance 
in subjects' urine.
---------------------------------------------------------------------------

    \25\ Caplan, Y.H. & Huestis, M.A. (Eds.) (2007). Workplace 
Testing. In S. Karch (Ed.) Drug Abuse Handbook, 2nd Edition. Boca 
Raton: Taylor & Francis Group, LLC.
---------------------------------------------------------------------------

    This list of prohibited substances could be revised in the future 
at the Secretary's discretion and as changes in drug-abuse trends 
occur. Nothing in the rule prohibits mine operators from testing for 
additional drugs under their own authority. Though it is advisable that 
any additional drugs be referenced in the mine operators' drug-free 
workplace policy statements and that testing be conducted consistent 
with established professional standards, the rule does not speak to 
such matters. It is allowable for mine operators who choose to test for 
additional drugs to use the same sample to do so. However, though the 
mine operator may choose to treat positive tests for the additional 
drugs the same way as for those tested under this rule, it is not 
required. In other words, it is not considered a violation of this part 
for a miner to use drugs not specified in the rule though it may 
violate other laws. Comments received during the ANPRM process noted 
that there may be times when drugs abused by miners may not be among 
those specified in a rule. By not restricting mine operators from 
testing for the use of additional drugs, the rule would enable mine 
operators to tailor their drug-testing policy and program as 
appropriate for their communities and to adapt it as needed based on 
changing trends in drug use. It also reflects standard latitude given 
to most private

[[Page 52148]]

sector companies. MSHA invites comments about the required panel of 
drugs subject to mandatory testing.

Section 66.303 Circumstances Under Which Testing Will Be Required

    The proposed rule would follow the DOT part 40 testing guidelines 
and require testing in the following circumstances: Pre-employment 
testing, random testing, post-accident testing, reasonable suspicion 
testing, and as part of a return-to-duty and follow-up process for 
miners found to be in violation of the alcohol and drug prohibitions.
    MSHA invites comments about the circumstances under which testing 
is warranted, and should therefore, be required.

Section 66.304 Pre-employment Testing

    The proposed rule would require mine operators to ensure that each 
miner take a pre-employment alcohol- and drug-test and produce a 
negative result before performing safety-sensitive job duties. Pre-
employment testing includes testing new applicants for safety-sensitive 
positions as well as incumbent miners if they are switching from 
positions that do not involve safety-sensitive job duties to positions 
that involve safety-sensitive job duties. The purpose of pre-employment 
testing is to prevent hiring those who are unable to abstain long 
enough to be able to pass such a test, and to discourage those who 
actively use drugs from applying. Because pre-employment testing for 
alcohol cannot be conducted pursuant to the Americans with Disabilities 
Act (ADA) until after a conditional offer of employment has been made, 
the proposed rule would require that mine operators conduct alcohol 
tests only after such an offer has been made, but before a miner 
performs safety-sensitive job duties. Since the ADA does not impose 
similar restrictions on drug-testing, mine operators can conduct those 
tests at any time in the application and hiring process and do not need 
to wait until a conditional offer of employment has been made.
    Pre-employment testing is widely used in the private sector and 
several mine operators responding to the ANPRM reported that they 
already conduct such testing. Although some commenters expressed 
concerns that pre-employment alcohol- and drug-testing would make it 
difficult for them to hire experienced miners due to labor shortages in 
some areas, others remarked that pre-employment testing alone is not 
sufficient to keep drug users out of the mine since even habitual drug 
users can usually abstain long enough to produce the required negative 
result. Most agreed, however, that pre-employment testing is a 
necessary element of an effective alcohol- and drug-free mine program. 
MSHA agrees that pre-employment alcohol- and drug-testing sends a clear 
message that misuse of alcohol and drugs will not be tolerated and 
discourages many with alcohol and/or drug problems from applying, and 
therefore proposes to require such testing as part of the proposed 
rule. Under the proposal, an applicant could not be hired if their 
alcohol test result is a BAC of 0.04 percent or above.
    Although mine operators may choose to require that all miners who 
will be performing safety-sensitive job duties and their supervisors 
submit to alcohol- and drug-tests when the program is initiated, the 
rule will not require that incumbent workers take pre-employment tests 
to continue performing their safety-sensitive job duties. MSHA invites 
comments about the proposed pre-employment alcohol- and drug-testing 
provisions.

Section 66.305 Random Testing

    For the purposes of this rule, random testing is unannounced 
testing performed on miners who perform safety-sensitive job duties and 
their supervisors, whose unique identifying information (e.g., an 
employee number) has been placed in a testing pool from which a 
scientifically arbitrary selection is made. The purpose of random 
testing is to deter current miners from using drugs illegally or coming 
to work impaired by alcohol or drugs. Many commenters expressed support 
for adopting random testing because of its strong deterrent effect and 
also shared that many of their existing programs require random testing 
at various annual rates. Although some commenters expressed skepticism 
about whether random testing is always truly random, and expressed fear 
that it can be used to target specific individuals, most confirmed that 
when done according to correct procedures, it can be an effective way 
to deter use provided that everyone is equally subject to such testing. 
Some expressed belief that it is, in fact, a more objective method of 
determining who gets tested than relying on supervisors to recommend 
drug tests based on reasonable suspicion, which, even with adequate 
training, is a subjective judgment.
    In order to get an indication of random alcohol- and drug-testing 
rates used by mining industry operators, we reviewed the policies 
shared during the 2004 Summit, comments made during the 2005 ANPRM 
public meetings, and written submissions received in response to the 
ANPRM. Thirteen stakeholders were identified with random alcohol- and/
or drug-testing programs, and 11 of these volunteered the percentages 
used. There was a wide variation in rates used, ranging from 1 percent 
to 100 percent. Most companies who shared this information were testing 
in the range of 10 percent to 30 percent annually.
    After considering the broad spectrum of experiences with random 
testing, including those of DOT and the federal agency programs, MSHA 
is proposing to include it as a required element of the alcohol- and 
drug-testing rule and proposes to require that a minimum of 10 percent 
of miners that perform safety-sensitive job duties and their 
supervisors be randomly tested each year. The rule proposes to allow 
mine operators discretion to test at higher rates, and MSHA proposes to 
leave to the mine operator's discretion the frequency at which random 
testing is done so long as the floor of 10 percent is reached each 
calendar year. The rule would require that random testing be done on an 
unannounced, unpredictable schedule. Miners who are on leave or 
otherwise absent from the workplace would be tested at the next 
available opportunity (e.g., immediately upon their return to work).
    MSHA recognizes that small mine operators may not have a pool of 
miners large enough to set up a meaningful random selection pool and so 
we would allow mine operators to fulfill the random testing requirement 
by forming or joining consortia for that purpose.
    MSHA invites comments about the floor rate at which testing would 
be conducted and what options, including joining consortia, are viable 
for small mine operators to fulfill the random testing requirement of 
the proposal.

Section 66.306 Post-accident Testing

    The proposed rule would require that post-accident tests be 
conducted by mine operators whenever an accident or occupational injury 
must be reported to MSHA. MSHA proposes that for fatalities and non-
fatalities all surviving miners involved in any work activity that 
could have contributed to the accident or occupational injury be tested 
for alcohol and drug use as soon as practical, but no later than eight 
hours after the incident for alcohol and 32 hours for drugs. The 
differing testing windows are proposed because alcohol clears the 
system much more quickly than drugs. An alcohol-test result obtained 
beyond the eight-hour window

[[Page 52149]]

would not tell an investigator anything about whether the miner was 
under the influence at the time of the incident. The proposed rule 
leaves the decision about who must be tested to the mine operators, but 
proposes a broad reach such that anyone who could possibly have 
contributed to the accident could be tested. It is the intent of the 
proposal that mine operators make the decision to test as quickly and 
objectively as possible, because delay in conducting tests makes the 
results irrelevant to the accident investigation. Because it would be 
useful to collect information about whether the victim in a fatality 
had used alcohol or drugs in order to determine the cause and to 
prevent future accidents, MSHA is proposing to require post-mortem 
toxicology testing of the deceased. Although some states require 
approval of the next of kin in order to conduct and release autopsy 
results, a toxicology test is not nearly as invasive as an autopsy. 
Therefore, MSHA believes its authority to investigate following 
fatalities extends to requiring the performance of toxicology tests, 
for at least the same substances for which others are tested following 
an accident.
    Although the proposed rule requires mine operators to make the 
decisions about when and whom to test following a reportable accident, 
MSHA proposes to give its investigators authority to require such tests 
if they arrive within the testing window (eight hours for alcohol and 
32 hours for drugs) and determine that additional miners not already 
tested by the operator may have contributed to the accident. All post-
accident tests would be performed at the mine operator's expense. The 
proposed rule also would require that post-accident tests would not be 
allowed to delay the delivery of necessary medical attention to injured 
miners. MSHA invites comments on the proposed post-accident testing 
provisions.
    Testing following an accident can help determine whether alcohol 
and/or drugs were a factor in the accident. It is important to note 
that although the result of post-accident testing may determine recent 
drug or alcohol use, it cannot in and of itself prove that impairment 
from those substances caused the accident. The ANPRM specifically asked 
for comments about whether alcohol and drug inquiries should be added 
to post-accident investigations and, if so, what types of inquiries 
should be made. Several commenters supported post-accident alcohol- and 
drug-testing as part of these investigations. MSHA has not proposed 
specific changes to the accident investigation process (see 30 CFR 
50.11), but welcomes comments on how the alcohol- and drug-testing 
results should be documented in accident reports as well as how they 
should be evaluated during an accident investigation to help determine 
the cause of the accident. MSHA also welcomes comments from those that 
already perform post-accident tests regarding the number of cases where 
alcohol or drugs were determined to be a contributing or root cause of 
the accident, and the frequency of all accidents/injuries where tests 
reveal some alcohol or drug involvement.

Section 66.307 Reasonable Suspicion Testing

    Reasonable suspicion testing is conducted when a supervisor 
documents observable signs and symptoms that lead him or her to suspect 
alcohol or drug use. Such testing is a tool that supervisors can use to 
confirm or rule out alcohol or drugs as the cause of performance 
problems and behaviors that in and of themselves could create hazards. 
Under the proposed rule, if a test is positive the miner can, at least 
upon the first such violation, be referred to evaluation and treatment 
in order to get the help needed to be able to return to safe and 
productive work.
    A number of those speaking at ANPRM public meetings discussed the 
pros and cons of reasonable suspicion testing. Most agreed that it was 
a useful tool available to management to verify suspected alcohol or 
drug use. However, several expressed their reservations about whether 
supervisors, even with considerable training, can readily identify when 
someone is impaired by drugs, noting that alcohol is much easier to 
detect since there is generally an odor one can smell. Others stated 
that there is so much subjective judgment required to make a reasonable 
suspicion determination that such testing is problematic to implement--
especially within a regulatory framework. Some noted that even when 
reasonable suspicion testing is required, as it is under the DOT 
regulations, supervisors often fail to utilize this option. Many 
commenters to the ANPRM underscored the importance of providing 
adequate training to supervisors on how to make such determinations.
    MSHA believes reasonable suspicion testing is necessary to allow 
individual mines to respond quickly and appropriately to individual 
situations. Thus, the proposed rule would require mine operators to 
include reasonable suspicion testing in their alcohol- and drug-free 
mine program. It specifies that mine operators' determinations to 
conduct reasonable suspicion tests must be based on specific, 
contemporaneous, articulable observations concerning the appearance, 
behavior, speech, or body odors of the miners and that only those 
trained in making these determinations could do so. The proposed rule 
leaves it to the mine operator's discretion to determine who should be 
trained and authorized as a supervisor to make these determinations.

Subpart E--Operator Responsibilities, Actions, and Consequences

    Under the proposed rule, mine operators would generally be cited 
for failure to comply with the requirements to institute an alcohol- 
and drug-free mine policy and program. Several of those commenting on 
the ANPRM expressed concern about whether mine operators should be held 
accountable for the actions of miners who violate the policy 
prohibiting use of alcohol or drugs while performing safety-sensitive 
job duties. It is not MSHA's intent to sanction mine operators who 
implement an alcohol- and drug-free mine program that includes alcohol- 
and drug-testing as prescribed in part 66, and who demonstrate a good 
faith effort to enforce their policy. However, mine operators who fail 
to implement and enforce these policies would be cited, specifically in 
cases where failure to enforce the provisions of the rule by monitoring 
miner compliance results in fatalities, accidents or injuries. MSHA 
invites comments as to the appropriate means for enforcing the 
provisions of this proposed rule.

Section 66.400 Consequences to Miner for Failing an Alcohol or Drug 
Test or Refusal To Test

    Several commenters said that an alcohol and drug regulation should 
hold individual miners accountable for their actions rather than place 
responsibility solely on mine operators, and several of these 
commenters referenced the smoking materials prohibition as a precedent 
for doing so. A number of ANPRM commenters, including the National 
Mining Association (NMA) and the National Stone Sand and Gravel 
Association (NSSGA), specifically suggested that some form of monetary 
penalty, like the fines for smoking, should be levied on miners who 
violate prohibitions against using or being under the influence of 
alcohol and drugs at the mine.
    This proposed rule would not impose a monetary penalty on miners 
possessing, using or being under the influence of alcohol or drugs 
while at work. Rather, the proposed rule would require that miners who 
violate the alcohol and drug prohibitions be

[[Page 52150]]

immediately removed from performing safety-sensitive job duties and not 
allowed to perform such duties until their alcohol- and drug-free 
status is assured, as specified in section 66.406. The process for 
removal, referral and potential return to work has been modeled on the 
provisions of the DOT rule.

Section 66.401 Operator Actions Pending Receipt of Test Results

    This section of the proposed rule specifies what actions mine 
operators would be required to take while awaiting the results of 
alcohol or drug tests. For those miners who are sent for testing based 
on random selection, mine operators would be required to allow miners 
to immediately return to performance of duties. However, in those cases 
where a miner is sent for testing either because the mine operator has 
determined that there is reason to suspect that the miner has been 
misusing prohibited substances or that he/she may have contributed to 
the cause of an accident, the mine operator would be required to remove 
the miner from performing safety-sensitive job duties until the test 
results are received. Doing so protects other miners from potential 
hazards when there is a reason to suspect that the miner being tested 
has been misusing prohibited substances. It is left to the mine 
operators' discretion whether or not the miner can perform other non-
safety-sensitive job duties in the interim. The proposed rule would 
require that miners suspended from performing safety-sensitive job 
duties pending results all be treated in the same manner with respect 
to this policy and that no action adversely affecting the miner's pay 
and benefits pending the completion of the process would be taken. 
Whether or not the miner is paid during the suspension if the ultimate 
verified test result is positive, is left to the mine operator's 
discretion subject to labor-management agreements. MSHA believes that 
removing those who are tested for a reasonable suspicion or after 
involvement in an accident while awaiting the results is necessary to 
protect the safety of all miners.

Section 66.402 Substantiating Legitimate Use of Otherwise Prohibited 
Substances

    This proposed section states that it is up to the mine operator to 
make sure that miners have ample opportunity to demonstrate that any 
use of prohibited substances (as defined in this rule) has been 
authorized by a physician. It further specifies that the possession of 
a valid prescription alone is not sufficient proof of legitimate use. 
This provision allows the miner an opportunity to provide evidence that 
the prohibited substance(s) has been legitimately prescribed and allows 
the MRO to conduct a medical interview of each miner following a 
confirmed positive test; review the miner's medical history; and 
consider not only the possession of a valid prescription, but any other 
relevant biomedical factors presented by the miner. The MRO may also 
direct miners to undergo further medical evaluation and/or contact the 
miner's physician or other relevant personnel for further information. 
It is not the intent of this provision to have the MRO determine 
whether the use of a given substance is compatible with the performance 
of safety-sensitive job duties, as this is a determination that is best 
made by the miner's physician.
    MSHA has modeled this provision on the DOT MRO review process and 
invites comments on the application of this process within the mining 
industry, specifically for those instances in which positive test 
results are received for prescription drug use that is legitimate and 
appropriate, but for which the MRO believes there may be safety 
concerns based on the nature of the medication. MSHA is also interested 
in learning from mine operators who already test for these additional 
substances about their experience differentiating legitimate from 
unauthorized use and for dealing with discovery of use of substances 
that, even when used as authorized, may have impairing effects 
incompatible with performance of safety-sensitive job duties.

Section 66.403 Operator Actions After Receiving Verified Test Results

    This section specifies the actions mine operators must take upon 
receiving a verified alcohol- or drug-test result. For alcohol tests 
with a resulting BAC of 0.04 percent or higher or drug test results 
that are verified by the MRO as positive, adulterated or substituted, 
the mine operator must immediately remove the miner from performance of 
safety-sensitive job duties and refer him or her to an SAP without 
waiting for the subsequent results of any split specimen testing. 
However, the mine operator is not required to provide referral 
assistance upon any subsequent offenses.
    MSHA invites comments about the provisions on what action mine 
operators must take upon receiving alcohol- and drug-test results.

Section 66.404 Evaluation and Referral

    This section specifies that in each case of an alcohol- and drug-
free mine policy violation the miner would be provided with a listing 
of SAPs. However, the proposed rule would only require mine operators 
to offer job security to those miners who violate the alcohol- and 
drug-free mine policy for the first time provided they follow the SAP 
treatment recommendations and required return-to-duty procedures. For 
subsequent offenses, mine operators would have the discretion to 
specify disciplinary consequences, up to and including termination. 
Although MSHA believes it may be in the mine operator's interest to pay 
for SAP and treatment services in order to retain experienced miners, 
it is left up to the mine operator's discretion and collective 
bargaining agreements whether or not to do so.
    Many mine operators who responded to the ANPRM said they find 
offering assistance to those with alcohol and drug problems, most 
commonly through an Employee Assistance Program (EAP), a successful 
avenue for returning miners to work and assisting mine operators in 
retaining valued employees. In addition, one commenter expressed the 
opinion that rehabilitated miners are often an improvement to safety 
and a positive model to others. Several responders also commented on 
the value of an established avenue for employee assistance in emergency 
situations involving alcohol and drugs. Given this, the proposed rule 
prescribes a process through which miners who violate their employer's 
alcohol- and drug-free mine policy would, on first offense, be referred 
for assessment by a Substance Abuse Professional (SAP) and referred for 
treatment as appropriate, and following this, be offered the 
opportunity to return to duty provided compliance with certain 
requirements.
    However, it is important to note that EAP programs include a range 
of services that go beyond those required to achieve recovery from 
alcohol and drug problems, and consequently MSHA believes that a more 
targeted approach is best for addressing the alcohol and drug issues 
outlined in the proposed rule. Therefore, MSHA only requires that mine 
operators make SAP services available rather than comprehensive EAPs. 
The proposed rule also allows the mine operator to make these services 
available to miners who have not violated the policy, as well as to 
those who have violated it more than once, as determined by the mine 
operator's policy.

[[Page 52151]]

    It is also important to note that although EAPs can perform SAP 
functions, the drug testing and compliance monitoring function of SAPs 
(as specified in this proposed rule), falls outside the scope of a 
typical EAP practice. Therefore, simply having an EAP would not 
necessarily meet this requirement unless the EAP agrees to perform the 
SAP monitoring functions. We invite comments on the inclusion of SAP 
functions without EAPs.

Section 66.405 Return-to-Duty Process

    The proposed rule also specifies that prior to returning to 
performing safety-sensitive job duties, miners must follow the 
treatment recommendations of the SAP, be re-evaluated by the SAP, and 
comply with the testing requirements established by the SAP. Miners and 
operators must abide by the recommendations of the agreed upon 
qualified SAP and may not seek a second opinion from another SAP 
following the initial evaluation. Although the SAP verifies compliance 
with the recommended treatment, it is the mine operator who decides 
whether the miner will return to work performing safety-sensitive job 
duties. However, the proposed rule specifies that a miner who has 
successfully completed the recommended treatment and passed the return-
to-duty tests may not be discharged for his/her first offense.
    Several mine operators shared that their current policies include 
similar provisions. MSHA believes the proposed rule incorporates 
appropriate accountability but invites comments about the consequences 
that would be imposed upon miners by the proposed rule. MSHA also 
invites comments about the evaluation and referral process and the role 
of the SAP in recommending treatment and determining compliance.

Section 66.406 Return-to-Duty Testing and Follow-Up Testing

    Return-to-duty testing is a one-time announced test that is 
required when a miner who tested positive in the past has completed 
required treatment and is ready to return to a position that involves 
performing safety-sensitive job duties. Follow-up testing is conducted 
periodically after a miner returns to work after completing treatment. 
It is administered on an unannounced, unpredictable basis for a pre-
specified period of time. A number of commenters remarked on the 
importance of return-to-duty and follow-up testing to monitor 
compliance and provide assurances that those who have previously 
violated the alcohol- and drug-free mine policy do not return to using 
prohibited substances.
    MSHA's proposed rule includes return-to-duty and follow-up testing 
as a protection for mine operators and miners. MSHA proposes adopting 
this process as a way for mine operators to allow qualified, skilled 
miners to return to jobs where they are needed, while also providing 
protections to ensure they are safe to do so.
    Specifically, the proposed rule would require miners to have a 
verified negative return-to-duty drug-test and an alcohol-test reading 
of less than a BAC of 0.04 percent before returning to the performance 
of safety-sensitive job duties. The number and frequency of follow-up 
tests would be solely determined by the SAP with a minimum of six 
unannounced tests in the first 12 months following return to work and 
continuing for a maximum of 24 months. MSHA invites comments about the 
provisions for return-to-duty and follow-up testing.

Subpart F--Recordkeeping and Reporting

Section 66.500 Recordkeeping Requirements

    The proposed rule specifies that records of alcohol- and drug-tests 
would be protected as confidential communication between the mine 
operator and the miner. The proposed rule also prohibits sharing such 
records with others and requires secure storage so that they cannot be 
accessed by unauthorized individuals. MSHA believes this provision is 
necessary to ensure the privacy of individuals.
    MSHA, the mining industry, and individual mine operators can all 
benefit from establishing an accurate quantifiable baseline of alcohol 
and drug problems, and tracking the trends over time that result from 
the proposed rule. Consequently, the proposed rule would require mine 
operators to keep records on the number of miners in safety-sensitive 
job positions that are covered by the rule and results from the various 
types of tests performed. An alcohol- and drug-free mine program would 
be required to be made available upon request. Under the proposal, MSHA 
would be able to analyze the information, which could add to an 
understanding of the extent of alcohol and drug abuse among miners and 
to what degree such use contributes to accidents and injuries.
    Under the proposed rule, MSHA would require policy violation 
information (including drug-testing results) be kept consistent with 
existing record retention requirements. The agency seeks comments about 
what records would need to be kept and for how long a period of time.
    In addition, it is proposed that post-accident test results would 
be required to be included in reports of injuries and accidents as well 
as fatalities.
    Although MSHA is not currently proposing specific changes to 30 CFR 
part 50, it is the intent to consider how best to reflect the results 
of post-accident drug-testing. In order to assess whether alcohol or 
drugs have been identified as contributing causes of accidents in the 
past and to understand how evidence of such use was addressed in 
accident reports, a review was conducted of those identifiable 
available fatal and non-fatal accident reports where alcohol or drugs 
were mentioned. Although it was not possible to determine with 
certainty, this examination suggested that there are more accidents 
(both fatal and non-fatal) than reflected in reports where alcohol or 
drugs are a contributing or root cause. This is based on the 
observation that, in both the non-fatal and fatal accident reports, 
there was a lack of uniformity concerning how alcohol and/or drug 
factors were considered and reported. Specifically, there was no 
regularity as to:
     Procedures and/or criteria for investigating the role of 
alcohol/drugs;
     The type of information provided from the investigations 
concerning alcohol/drugs; and
     How the information about alcohol/drugs is reported (i.e., 
there is no standard template).
    Since the mining industry currently lacks a uniform policy 
concerning when alcohol- and/or drug-testing is conducted after 
accidents or injuries, it is not surprising that there is inconsistent 
reporting of such data. Making alcohol- and drug-tests a standard part 
of an accident investigation and reporting the results could go a long 
way toward providing better information about the extent to which 
alcohol and drug use contributes to accidents in the mining industry. 
However, the test results alone will not sufficiently determine the 
role of a substance in an accident. Rather, the industry must consider 
the test results in light of the facts of the accident and the effects 
of the particular substance in question. To fully understand the role 
of alcohol or drugs, it might be helpful to develop a standard set of 
procedures/criteria for investigating the role of alcohol/drugs in non-
fatal and fatal accidents and establish a taxonomy structure for 
information gathering and reporting.

[[Page 52152]]

    In addition, investigators may lack the level of expertise needed 
to reliably:
     Identify alcohol and drug ``evidence'' at the post-
accident scene;
     Interpret the meaning of alcohol- and drug-test results; 
and
     Assess whether identified alcohol/drug involvement and 
their effects could have contributed to the fatality outcome by 
affecting behaviors such as attention, concentration, judgment, 
decision-making, or motor skills.
    Therefore, it might be helpful to more systematically capture and 
report how alcohol and/or drugs are identified/tested positive, even 
when not deemed to be a contributory or root cause. Furthermore, an 
explanation of why the alcohol/drug use was ruled out or discounted 
would be informative. Finally, it may be useful to provide training to 
investigators so that they recognize signs that alcohol and/or drugs 
may have been involved and know what questions to ask about possible 
involvement when investigating accidents. MSHA invites comments about 
how best to reflect post-accident test results in required reports 
following both fatal and non-fatal accidents.

V. Executive Order 12866

    Executive Order (E.O.) 12866 requires that regulatory agencies 
assess both the costs and benefits of regulations. To comply with this 
requirement, MSHA has prepared a Preliminary Regulatory Economic 
Analysis (PREA) for this proposed rule. The PREA examines the costs and 
benefits of the proposed requirements for coal and metal/non metal (M/
NM) mine operators to establish an alcohol- and drug-free mine program 
that includes a written policy, employee education, supervisory 
training, alcohol- and drug-testing for miners who perform safety-
sensitive job duties and their supervisors, referrals to assistance for 
miners who violate the policy, and recordkeeping provisions. General 
administrative and clerical personnel are not covered by these proposed 
requirements.
    The PREA also contains supporting data and explanation for the 
summary economic materials presented in this preamble, including data 
on the mining industry, feasibility, small business impacts, and 
paperwork. The PREA is located on MSHA's Web site at http://www.msha.gov/REGSINFO.HTM. A copy of the PREA can be obtained from 
MSHA's Office of Standards, Regulations and Variances at the address in 
the ADDRESSES section of the preamble. MSHA requests comments on all 
the estimates of costs and benefits present in this PREA and on the 
data and assumptions the agency used to develop estimates.
    Under E.O. 12866, a significant regulatory action is one meeting 
any of a number of specified conditions, including the following: 
Having an annual effect on the economy of $100 million or more, 
creating a serious inconsistency or interfering with an action of 
another agency, materially altering the budgetary impact of 
entitlements or the rights of entitlement recipients, or raising novel 
legal or policy issues. Based on the PREA, MSHA has determined that 
this proposed rule would not have an annual effect of $100 million or 
more on the economy; therefore, it is not an economically significant 
regulatory action. However, MSHA has concluded that the proposed rule 
is otherwise significant because it raises novel legal or policy 
issues.

A. Population at Risk

    The proposed rule establishes new standards for all mine operators. 
With respect to the coal mining industry, the proposed rule would apply 
to 2,013 coal mines employing 80,256 miners and to 2,966 coal 
contractors with an additional 36,227 non-office employees, using 
MSHA's Office of Program Evaluation and Information Resources (PEIR) 
data for 2007. With respect to the M/NM mines, the proposed rule would 
apply to 12,773 M/NM mines employing 159,644 miners and to 5,302 M/NM 
contractors with an additional 64,333 non-office employees, using PEIR 
data for 2007. Office workers who have only clerical or administrative 
duties are not covered by the proposed requirements for drug-testing or 
training. In total, this rule would apply to approximately 23,054 mine 
operators (i.e., mines and contractors) and 340,460 miners (i.e., 
miners and non-office employees of contractors).

B. Benefits

    The use of alcohol and drugs in the workplace negatively affects 
U.S. industry through lost productivity, workplace accidents and 
injuries, employee absenteeism, low morale, and increased illness. The 
loss to U.S. companies due to employees' alcohol and drug use and 
related problems is estimated at billions of dollars per year. This 
proposed rule would require mine operators to establish an alcohol- and 
drug-free workplace program to prevent workplace accidents, injuries 
and fatalities in mines caused by the use or abuse of alcohol and/or 
drugs.
    MSHA currently prohibits the use of intoxicating beverages and 
narcotics in or around M/NM mines; and persons under the influence of 
alcohol or narcotics are not permitted on the job site. However, since 
these requirements only apply to M/NM operators, MSHA believes that 
uniform policies and procedures are needed to prevent the misuse of 
alcohol and drugs that could impair the functioning of miners and 
result in the injury or death in both coal and M/NM mines.
    A major benefit from this rulemaking would be the prevention of 
injuries and fatalities resulting from accidents caused by neglect or 
error on the part of individuals whose judgment or motor skills may be 
impaired by the use of alcohol and/or drugs. MSHA's reporting process 
does routinely include inquiries into the use of alcohol or drugs as 
contributing factors in mine accidents. Consequently, there may have 
been accidents in which alcohol or drugs were involved but were not 
reported to inspectors or identified during MSHA investigations. A 
preliminary review by MSHA of fatal and non-fatal mine accident records 
revealed a number of instances in which alcohol, drugs, or drug 
paraphernalia were found or reported at the scene, or where the post-
accident toxicology screens of those involved in an accident revealed 
the presence of alcohol or drugs.
    The U.S. Department of Health and Human Services, Substance Abuse 
and Mental Health Services Administration's (SAMHSA) 2006 National 
Survey on Drug Use and Health \26\ reports that in 2006, of the 17.9 
million current illicit drug \27\ users age 18 and over, 13.4 million 
(74.9 percent) were employed.\28\ Similarly, among 54 million adult 
binge drinkers, 42.9 million (79.4 percent) were employed, and among 
16.3 million persons reporting heavy alcohol use, 12.9 million (79.2 
percent) were employed.\29\ Also, in 2006, of the 20.6

[[Page 52153]]

million adults classified with substance dependence or abuse, 12.7 
million (61.5 percent) were employed full-time.\30\ Furthermore, among 
the U.S. working age population (ages 18-64) diagnosed with a substance 
use disorder, 62.7 percent were employed full-time.\31\
---------------------------------------------------------------------------

    \26\ The 2006 National Survey on Drug Use and Health (NSDUH) is 
the annual survey and primary source of information on the use of 
illicit drugs, alcohol, and tobacco in the civilian, non-
institutionalized population of the United States aged 12 years old 
or older.
    \27\ The survey defined current illicit drug use as the non-
medical use of marijuana/hashish, cocaine (including crack), heroin, 
hallucinogens, inhalants or prescription-type drugs. Non-medical use 
is defined as the use of prescription-type drugs not prescribed for 
the respondent by a physician or used only for the experience or 
feeling they caused. Non-medical use of any prescription-type pain 
reliever, sedative, stimulant, or tranquilizer does not include 
over-the counter drugs. Non-medical use of stimulants includes 
methamphetamine use.
    \28\ Substance Abuse and Mental Health Services Administration. 
(2007). Results from the 2006 National Survey on Drug Use and 
Health: National Findings (Office of Applied Studies, NSDUH Series 
H-32, DHHS Publication No. SMA 07-4293). Rockville, MD.
    \29\ Ibid.
---------------------------------------------------------------------------

    In a 1998 analysis of available toxicology reports across a variety 
of occupations and within different industries, the Bureau of Labor 
Statistics (BLS) estimated that as many as one in five workplace 
fatalities had a positive test for alcohol or drugs.\32\ BLS reported 
that alcohol was the substance found most often, appearing in 48 
percent of positive reports.\33\
---------------------------------------------------------------------------

    \30\ Ibid.
    \31\ Ibid.
    \32\ Weber, W., and Cox, C. ``Work-Related Fatal Injuries in 
1998'' Compensation and Working Conditions, Spring 2001, pp. 27-29.
    \33\ Ibid.
---------------------------------------------------------------------------

    SAMHSA's June 2007 Worker Substance Use and Workplace Policies and 
Programs Report \34\ shows alcohol and drug use and abuse by standard 
occupational and industry classifications. Illicit drug use was 
reported at 15.1 percent and heavy alcohol use was 17.8 percent among 
full-time workers aged 18-64 in the construction, trade, and excavation 
occupational group.\35\ The data also show that in the mining \36\ 
industry, 13.3 percent of full-time miners were heavy alcohol users and 
7.3 percent admitted that they used illicit drugs within the past 
month. This does not mean that those surveyed admitted to either being 
under the influence or having used alcohol or drugs at work or 
immediately prior to work. However, the statistics do suggest a cause 
for employer concern since there are no guarantees that those who drink 
heavily or use illicit drugs would constrain such behaviors, which have 
the potential to seriously jeopardize mine safety, to off-duty hours. 
Many firms find that addressing alcohol and drug use is well worth the 
time and money involved in a drug-testing program. For example, after 
MSHA published its 2005 ANPRM, an industry representative said, ``The 
principle benefit is it's a safe workplace due to employees operating 
out of the influence of drugs or alcohol.'' A commenter from a trade 
association said, ``The costs to a mine operation of substance abuse in 
worker health and safety, as well as production losses, are already a 
powerful incentive to maintain an effective substance abuse program.''
---------------------------------------------------------------------------

    \34\ Substance Abuse and Mental Health Services Administration 
(2007). The Worker Substance Use and Workplace Policies and Programs 
Report presents findings on substance use among workers and on 
workplace drug policy and programs from the 2002, 2003, and 2004 
National Surveys of Drug Use and Health. (Office of Applied Studies, 
Analytic Series: A-29).
    \35\ The Standard Occupation System categorizes occupations into 
21 groups. The Construction Trades and Extraction Workers group 
includes mining.
    \36\ The NAICS, which replaced the Standard Industry 
Classification (SIC), categorizes all industries into 19 major 
groups and is used to classify industries in the Report.
---------------------------------------------------------------------------

    The purpose of the requirements in the proposed rule is to 
establish alcohol- and drug-free mine programs in all mine operations. 
These programs are designed to help prevent accidents, injuries, and 
fatalities resulting from the misuse of alcohol and use of prohibited 
drugs by miners who perform safety-sensitive job duties on mine 
property. An alcohol- and drug-free mine program that includes a 
written policy, employee education, supervisory training, alcohol- and 
drug-testing for miners that perform safety-sensitive job duties and 
their supervisors, and referrals to assistance for miners who violate 
the policy, would decrease injuries and fatalities. The number of 
fatalities associated with alcohol or drugs is difficult to quantify 
due to a lack of consistency in reporting the possibility of alcohol or 
drug involvement in injuries and fatalities.
    MSHA's analysis of fatal accidents from 1975 to 2007 revealed that 
24 of 978 reported deaths involved alcohol or drugs. From 1983 through 
2007, there were 593,047 non-fatal accidents reported, with 56 possibly 
involving alcohol or drugs. MSHA believes these figures under-represent 
the negative effects of alcohol and drugs in the mines because of a 
current lack of uniformity in investigation and particularly in 
reporting procedures.
    Mine operators are not currently required to have an alcohol- and 
drug-free mine program for preventing the use of alcohol and drugs that 
could impair the function of miners and result in the injury or death 
of themselves or their coworkers. However, MSHA believes this proposed 
rule would benefit both mine operators and miners in the following 
ways:
    (1) Mine operators would not have to hire new miners who cannot 
pass a pre-employment test, so all mine operators would benefit from 
not hiring persons shown to misuse alcohol and/or drugs. (2) Small 
mines in particular would benefit by implementing drug-testing 
procedures, since many small mines currently do not test for drug use 
and hence employ those unable to pass pre-employment drug-tests 
required by larger mines. (3) All mine operators across the country 
would be subject to consistent requirements. (4) Miners would benefit 
by having job security in the event that they self-disclose an alcohol 
or drug problem or seek treatment upon their first positive alcohol-or 
drug-test.
    Not implementing this rule would allow accidents related to alcohol 
and drugs, including cases where innocent co-workers are harmed, to 
continue to be underreported and possibly allow accidents related to 
alcohol and drugs to go unabated.

C. Compliance Costs

    MSHA estimated the first-year costs and the annual recurring costs 
of the proposed rule. MSHA estimated costs to mine operators on the 
following proposed provisions: Establish an alcohol- and drug-free mine 
program that includes a includes a written policy, employee education, 
supervisory training, alcohol- and drug-testing for miners that perform 
safety-sensitive duties and their supervisors, referrals to assistance 
for miners who violate the policy, and record retention.
    MSHA estimates that the total cost for the initial year of the 
proposed rule would be approximately $16,008,983 for all coal and M/NM 
mine operators and mine contractors. Of the $16.0 million, MSHA 
estimates approximately $1,253,065 in costs are related to the 
establishment of an alcohol- and drug-free mine program that includes a 
written policy, $7,150,544 in costs are for the alcohol- and drug-
testing; $6,840,971 in costs are related to training requirements, and 
$764,402 are related to the record retention provisions. Table 1 
provides a summary of the approximate first year costs of the proposed 
rule by mine size and proposed provision.

[[Page 52154]]



                              Table 1--Summary of the Approximate First Year Costs
----------------------------------------------------------------------------------------------------------------
                                                                     Employees
               Proposed provisions               ------------------------------------------------   Total first
                                                       1-19           20-500           501+         year costs
----------------------------------------------------------------------------------------------------------------
Written policy..................................      $1,074,099        $178,490            $476      $1,253,065
Alcohol and drug testing........................       2,479,298       4,512,894         158,352       7,150,544
Training........................................       2,291,625       4,396,829         152,517       6,840,971
Recordkeeping...................................         309,012         401,312          54,079         764,403
                                                 ---------------------------------------------------------------
    Total First Year Costs......................       6,154,034       9,489,524         365,424      16,008,983
----------------------------------------------------------------------------------------------------------------

    MSHA estimated annual recurring cost thereafter for all mine 
operators and contractors is $13,008,951. Of the $13.0 million, MSHA 
estimates approximately $7,150,544 in costs are for the alcohol- and 
drug-testing; $5,094,004 in costs are related to training requirements, 
and $764,402 are related to the record retention provisions. Table 2 
provides a summary of the approximate annual recurring costs of the 
proposed rule by mine size and proposed provision.

                            Table 2--Summary of the Approximate Annual Recurring Costs
----------------------------------------------------------------------------------------------------------------
                                                                     Employees                     Total annual
               Proposed provisions               ------------------------------------------------    recurring
                                                       1-19           20-500           501+            costs
----------------------------------------------------------------------------------------------------------------
Alcohol and drug testing........................      $2,479,298      $4,512,894        $158,352      $7,150,544
Training........................................       1,712,395       3,268,844         112,765       5,094,004
Recordkeeping...................................         309,012         401,312          54,079         764,403
                                                 ---------------------------------------------------------------
    Total Annual Recurring Costs................       4,500,705       8,183,050         325,196      13,008,951
----------------------------------------------------------------------------------------------------------------

D. Feasibility

    MSHA has concluded that the requirements of the proposed rule are 
technologically and economically feasible within the coal and M/NM 
mining sectors.
    This proposed rule is not a technology-forcing standard and does 
not involve activities on the frontier of scientific knowledge. In 
addition, the proposed rule would not require the purchase of any 
machinery or equipment to implement these standards. Therefore, we have 
concluded that this proposed rule is technologically feasible.
    The estimated compliance cost of the proposed rule for all mines in 
the first year is $16.0 million and in subsequent years the annual 
recurring cost is approximately $13.0 million, which is 0.00016 percent 
and 0.00013 percent, respectively, of its annual revenue of $99.4 
billion. MSHA concludes that the final rule would be economically 
feasible for both the coal and M/NM industries because the annual 
recurring compliance costs are well below one percent of the estimated 
annual revenue for all mines.

VI. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act

    In accordance with the Regulatory Flexibility Act (RFA) of 1980, as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA), MSHA has analyzed the impact of the proposed rule on small 
entities. Based on the analysis, MSHA certifies that the proposed rule 
does not have a significant economic impact on a substantial number of 
small entities. The factual basis for this certification is presented 
in the PREA and summarized below.

A. Definition of a Small Mine

    Under the RFA, in analyzing the impact of a rule on small entities, 
MSHA must use the Small Business Administration's (SBA) definition for 
a small entity or, after consultation with the SBA Office of Advocacy, 
establish an alternative definition for the mining industry by 
publishing that definition in the Federal Register for notice and 
comment. MSHA has not established an alternative definition, and hence 
is required to use the SBA's definition. The SBA defines a small entity 
in the mining industry as an establishment with 500 or fewer employees 
(13 CFR 121.201). This analysis complies with the legal requirements of 
the RFA for an analysis of the impacts on ``small entities.'' MSHA 
concludes that it can certify that the final rule would not have a 
significant economic impact on a substantial number of small entities.

B. Factual Basis for Certification

    MSHA's analysis of the economic impact on ``small entities'' begins 
with a ``screening'' analysis. The screening compares the estimated 
cost of a rule for small entities to the estimated revenue. When the 
estimated cost is less than one percent of estimated revenue (for the 
size categories considered), MSHA believes it is generally appropriate 
to conclude that the proposed rule does not have a significant economic 
impact on a substantial number of small entities. If estimated costs 
are equal to or exceed one percent of revenues, MSHA would investigate 
whether further analysis is required.
Coal Mine Revenues
    Revenues for coal mines are derived from data on underground and 
surface coal prices and tonnage. Total underground coal production in 
2007 was approximately 349 million tons. The 2006 price of underground 
coal was $38.28 per ton.\37\ To estimate the 2007 price, the 2006 price 
was increased by 5.5 percent to $40.37, using the Bureau of Labor 
Statistics producer price index for underground bituminous coal. Total 
estimated revenue in 2007 for underground coal production was $14.1 
billion. Multiplying tons by the 2007 price per ton, 2007 underground 
coal revenue, by mine size, is $11.2 billion for mines with 1-500 
employees.
---------------------------------------------------------------------------

    \37\ U.S. DOE, EIA, ``Annual Coal Report 2006,'' Table 28, 
October 2007.
---------------------------------------------------------------------------

    Total surface coal production in 2007 was approximately 792 million 
tons. The 2006 price of surface coal was $18.88 per ton.\38\ To 
estimate the 2007

[[Page 52155]]

price, the 2006 price was increased by 8.7 percent to $20.52, using the 
Bureau of Labor Statistics producer price index for surface bituminous 
coal. Total estimated revenue in 2007 for surface coal production was 
$16.2 billion. Multiplying tons by the 2007 price per ton, 2007 surface 
coal revenue, by mine size, is $11 billion for mines with 1-500 
employees.
---------------------------------------------------------------------------

    \38\ Ibid.
---------------------------------------------------------------------------

    Underground and surface coal revenue is estimated to be 
approximately $22.2 billion for mines with 1-500 employees. Underground 
and surface coal revenues for all mines are estimated to be $30.3 
million.
M/NM Mine Revenues
    Total 2007 revenues for M/NM mines are estimated to be $68 billion. 
Total M/NM 2007 employment hours are 362,707,747. Estimated revenues 
were divided by employment hours to arrive at an average of $187.48 
revenue per hour. Revenue for surface M/NM mines with 1-500 employees 
is approximately $54.8 billion (292.6 million employment hours x 
$187.48). Revenue for underground M/NM mines with 1-500 employees is 
approximately $5.1 billion (27.2 million employment hours x $187.48). 
Thus, revenues for surface and underground mines with 1-500 employees 
are estimated to be $59.9 billion.
Results of Screening Analysis
    The compliance cost of the proposed rule for coal mines and M/NM 
with 1-500 employees as a percent of revenues is 0.0192 percent for the 
first year and 0.0156 percent for ongoing years. This suggests that the 
proposed rule would not have a significant economic impact on a 
substantial number of small entities.

VII. Paperwork Reduction Act

    This NPRM contains information collection provisions which are 
subject to review by the Office of Management and Budget (OMB) under 
the Paperwork Reduction Act of 1995 (PRA). The title, description, and 
respondent description of the information collections are shown in the 
following paragraphs with an estimate of the annual reporting burden. 
Included in the estimate is the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information.
    Title: Alcohol- and Drug-Free Mines: Policy, Prohibitions, Testing, 
Training, and Assistance.
    Description: Alcohol- and Drug-Free Mines: Policy, Prohibitions, 
Testing, Training, and Assistance establishes a requirement for mine 
operators to set up alcohol- and drug-free mine programs that include a 
written policy, employee education, supervisory training, alcohol- and 
drug-testing for miners that perform safety-sensitive job duties and 
their supervisors, and referrals to assistance for miners who violate 
the policy. The proposed rule would also require those who violate the 
prohibitions to be removed from the performance of safety-sensitive job 
duties until they complete the recommended treatment and their alcohol- 
and drug-free status is confirmed by a return-to-duty test. These 
guidelines are established under authority of 30 U.S.C. 811.
    The proposed rule establishes paperwork requirements at section 
66.201 and subpart F. In addition, certain paperwork requirements at 
section 66.300 are incorporated by reference from title 49 CFR part 40, 
Procedures for Transportation Workplace Drug and Alcohol Testing 
Programs.
    This proposed rule requires that mine operators establish and 
implement a written alcohol- and drug-free mine policy and requires 
mine operators to keep and retain test records. The policy that can be 
based on a model provided by MSHA and posted in common areas accessible 
to miners should inform workers of the prohibitions against alcohol and 
drug use; the consequences for their use; and the existence of training 
requirements for certain miners and what those training requirements 
are. In addition, mine operators are required to maintain records of 
the following information: The number of workers in safety-sensitive 
positions; the total number of miners tested; the number of verified 
positive alcohol and drug tests for each substance; which miners were 
tested; testing dates; and test results. Mine operators are also 
required to maintain records of instances in which post-accident or 
reasonable suspicion testing is not conducted within the timeframes 
required by the rule. Such records should include an explanation of the 
reasons why testing was not conducted as required. Mine operators would 
be required to retain these records for at least three years.
    By incorporating title 49 CFR part 40 by reference, these 
guidelines also require the OMB-approved federal Custody and Control 
Form (CCF) to document the integrity and security of alcohol- and drug-
testing specimens from the time of collection through analysis.
    Description of Respondents: Mine operators/or service agents acting 
on behalf of affected mine operators.
    Response Burden Estimate: We anticipate the total annual response 
burden imposed by these guidelines to be 72,791 hours for the initial 
year and 49.737 hours per year thereafter. The initial year burden 
estimate is based on the following: (1) A mine owner is estimated to 
require an average of one hour to develop and post the required drug-
free workplace policy using the MSHA sample. Based on a total of 23,054 
mines, this results in 23,054 burden hours for development and posting 
of the policy. (2) The annual maintenance for non-substantive changes 
of the written policy is estimated at 0.167 burden hours per mine. 
Based on a total of 23,054, this results in 3,850 burden hours. (3) The 
annual recordkeeping to maintain test records is estimated at 0.167 
burden hours per mine. Based on a total of 23,054 mines, this results 
in 3,850 burden hours for recordkeeping and retention. (4) We estimate 
the completion of 201,618 Alcohol Testing Forms and federal Custody and 
Control Forms each year. This is based on a total miner population of 
340,460 with 10 percent of the population being subjected to random 
testing for alcohol and drugs and about 20 percent being subjected to 
other forms of testing for alcohol and drugs that include pre-
employment, post-accident, reasonable suspicion, return-to-duty, and 
follow-up testing. The average response burden for the Alcohol Testing 
Forms is estimated at 0.167 burden hours per mine. This results in 
16,835 burden hours (0.167 hours per form x 100,809 forms). The average 
response burden for completion of the federal Custody and Control Forms 
is estimated by the U.S. Department of Health and Human Services as 
0.25 burden hours per form, computed as follows: 5 minutes for each 
donor (miner), 4 minutes for the collector, 3 minutes for the 
laboratory, and 3 minutes for the Medical Review Officer. This results 
in 25,202 hours of burden (0.25 hours per form x 100,809 forms).
    The subsequent year estimate of 49,737 burden hours, where the 
burden associated with the development of the written policy is 
excluded, is based on 3,850 hours to maintain the written policy, 3,850 
hours for recordkeeping and retention, 16,835 hours for completion of 
the Alcohol Testing Form and 25,202 hours for completion of the federal 
Custody and Control Form.
    Individuals and organizations may submit comments on these burden 
estimates or any other aspect of these information collection 
provisions, including suggestions for reducing the

[[Page 52156]]

burden. MSHA is particularly interested in comments which:
     Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     Evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
     Enhance the quality, utility, and clarity of the 
information to be collected; and
     Minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submissions of responses.

VIII. Other Regulatory Considerations

A. The Unfunded Mandates Reform Act of 1995

    MSHA has reviewed the proposed rule under the Unfunded Mandates 
Reform Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that 
the proposed rule would not include any federal mandate that may result 
in increased expenditures by state, local, or tribal governments, and 
it would not increase private-sector expenditures by more that $100 
million in any one year or significantly or uniquely affect small 
governments. Accordingly, the Unfunded Mandates Reform Act of 1995 
requires no further agency action or analysis.

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

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

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

    This proposed rule would not implement a policy with takings 
implications. Accordingly, E.O. 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights, requires 
no further agency action or analysis.

D. Executive Order 12988: Civil Justice Reform

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

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

    This proposed rule would have no adverse impact on children. 
Accordingly, E.O. 13045, Protection of Children from Environmental 
Health Risks and Safety Risks, as amended by E.O. 13229 and 13296, 
requires no further agency action or analysis.

F. Executive Order 13132: Federalism

    The proposed rule would not have ``federalism implications'' 
because it would not ``have substantial direct effects on the states, 
on the relationship between the national government and the states, or 
on the distribution of power and responsibilities among the various 
levels of government.'' Accordingly, E.O. 13132 requires no further 
agency action or analysis.

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

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

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

    This proposed rule has been reviewed for its impact on the supply, 
distribution, and use of energy because it applies to the underground 
coal mining sector. This proposed rule will not impose any 
``significant energy action'' because it will not be ``likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy * * * (including a shortfall in supply, price increases, and 
increased use of foreign supplies).'' Accordingly, E.O. 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use, requires no further agency action or analysis.

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

    MSHA has reviewed the proposed rule to assess and take appropriate 
account of its potential impact on small businesses, small governmental 
jurisdictions, and small organizations. MSHA has determined and 
certified that the proposed rule does not have a significant economic 
impact on a substantial number of small entities.

List of Subjects

30 CFR Part 56

    Chemicals, Electric power, Explosives, Fire prevention, Hazardous 
substances, Metals, Mine safety and health, Noise control, Reporting 
and recordkeeping requirements.

30 CFR Part 57

    Chemicals, Electric power, Explosives, Fire prevention, Gases, 
Hazardous substances, Metals, Mine safety and health, Noise control, 
Radiation protection, Reporting and recordkeeping requirements.

30 CFR Part 66

    Alcohol- and drug-testing, Mine safety and health, Reporting and 
recordkeeping requirements.

    Dated: August 28, 2008.
Richard E. Stickler,
Acting Assistant Secretary for Mine Safety and Health.
    For the reasons set forth in the preamble, and under the authority 
of the Federal Mine Safety and Health Act of 1977, MSHA is proposing to 
amend chapter I of title 30 of the Code of Federal Regulations as 
follows.

PART 56--SAFETY AND HEALTH STANDARDS--SURFACE METAL AND NON METAL 
MINES

    1. The authority citation for part 56 continues to read as follows.

    Authority: 30 U.S.C. 811.

Subpart S [Amended]


Sec.  56.20001  [Removed and Reserved]

    2. Remove and reserve Sec.  56.20001.

[[Page 52157]]

PART 57--SAFETY AND HEALTH STANDARDS--UNDERGROUND METAL AND NON 
METAL MINES

    3. The authority citation for part 57 continues to read as follows.

    Authority: 30 U.S.C. 811.

Subpart S [Amended]


Sec.  57.20001  [Removed and Reserved]

    4. Remove and reserve Sec.  57.20001.
    5. A new subchapter N and a new part 66 are added to title 30 of 
the Code of Federal Regulations to read as follows.

30 CFR Subchapter N--Uniform Mine Safety Regulations

PART 66--ALCOHOL- AND DRUG-FREE MINES: POLICY, PROHIBITIONS, 
TESTING, TRAINING, AND ASSISTANCE

Sec.
Subpart A--General
66.1 Purpose.
66.2 Applicability.
66.3 Definitions.
Subpart B--Prohibitions
66.100 Prohibited substances.
66.101 Prohibited behaviors.
Subpart C--Alcohol- and Drug-Free Mine Program Requirement
66.200 Purpose and scope.
66.201 Written policy.
66.202 Education and awareness program for miners.
66.203 Training program for supervisors.
66.204 Miner assistance following admission of use of prohibited 
substances.
Subpart D--Alcohol- and Drug-Testing Requirements
66.300 Purpose and scope.
66.301 Substances subject to mandatory testing.
66.302 Additional testing.
66.303 Circumstances under which testing will be required.
66.304 Pre-employment testing.
66.305 Random testing.
66.306 Post-accident testing.
66.307 Reasonable suspicion testing.
Subpart E--Operator Responsibilities, Actions, and Consequences
66.400 Consequences to miner for failing an alcohol or drug test or 
refusal to test.
66.401 Operator actions pending receipt of test results.
66.402 Substantiating legitimate use of otherwise prohibited 
substances.
66.403 Operator actions after receiving verified test results.
66.404 Evaluation and referral.
66.405 Return-to-duty process.
66.406 Return-to-duty and follow-up testing.
Subpart F--Recordkeeping and Reporting
66.500 Recordkeeping requirements.

    Authority: 30 U.S.C. 811.

30 CFR Subchapter N--Uniform Mine Safety Regulations

PART 66--ALCOHOL- AND DRUG-FREE MINES: POLICY, PROHIBITIONS, 
TESTING, TRAINING AND ASSISTANCE

Subpart A--General


Sec.  66.1  Purpose.

    This part establishes the requirements for mine operators to 
develop an alcohol- and drug-free mine program to prevent accidents, 
injuries, and fatalities resulting from the misuse of prohibited 
substances by miners performing safety-sensitive job duties and their 
supervisors. Alcohol- and drug-free mine programs established prior to 
the effective date of this rule that include consistent policies, and 
alcohol- and drug-testing programs, and provide at least the same level 
of protection as these requirements, are in compliance with this 
standard.


Sec.  66.2  Applicability.

    (a) The possession or misuse of prohibited substances, except when 
used according to a valid prescription, is prohibited for all persons 
on and around mine property.
    (b) The alcohol- and drug-testing provisions in subpart D apply 
only to those miners who perform safety-sensitive job duties. 
Management and administrative personnel who supervise the performance 
of safety-sensitive job duties are also considered to hold safety-
sensitive positions; however, general administrative and clerical 
personnel are not. Such determinations shall be made consistent with 
the requirements of 30 CFR parts 46 and 48 for who must take 
comprehensive miner training.
    (c) Mine operators must inform all miners and contractors who 
perform work on their mine property of the requirements under this 
rule.


Sec.  66.3  Definitions.

    As used in this part:
    Adulterated specimen. A specimen that contains a substance that is 
not expected to be present in human urine, or contains a substance 
expected to be present but is at a concentration so high that it is not 
consistent with human urine.
    Alcohol. The intoxicating agent in beverage alcohol, ethyl alcohol, 
or other low molecular weight alcohols including methyl and isopropyl 
alcohol.
    Alcohol concentration. The alcohol in a volume of breath expressed 
in terms of grams of alcohol per 210 liters of breath as indicated by a 
breath test under this part. This provides an indication of the blood 
alcohol concentration (BAC) level which is equated with impairment 
levels.
    Breath Alcohol Technician (BAT). A person who instructs and assists 
miners in the alcohol-testing process and operates an evidential breath 
testing device. A BAT can be an employee of the mine operator. A BAT 
must have received qualifications training that includes training in 
alcohol-testing procedures and the operation of alcohol-testing 
devices.
    Confirmed drug test. A confirmation test result received by a 
Medical Review Officer (MRO) from a laboratory.
    Cut-off levels. The cut-off concentration of drug metabolite that 
is used for each drug class to call a urine specimen negative or 
positive. Based on the cut-off concentration used for each different 
drug class, a negative specimen is any specimen that contains no drug 
or whose apparent concentration of drug or drug metabolite is less than 
the cut-off concentration used for that drug or drug class.
    Drug-free workplace program. A program that prohibits the 
possession or misuse of prohibited substances while working and 
includes five elements (written policy, education, training, testing, 
and referrals for assistance) designed to prevent impairing effects 
that can compromise workplace safety. This term is used interchangeably 
with an ``alcohol- and drug-free workplace program'' and ``drug-free 
mine program.''
    Employee Assistance Program (EAP). A worksite-focused program 
designed to assist in the identification and resolution of problems 
associated with personal problems, such as alcohol and/or drug abuse.
    Follow-up testing. A minimum of six unannounced tests performed in 
the first 12 months on any miner who returns to safety-sensitive job 
duties after violating the alcohol- and drug-free workplace policy.
    Initial drug test. The test used to differentiate a negative 
specimen from one that requires further testing for drugs or drug 
metabolites.
    Laboratory. A U.S. laboratory certified by the U.S. Department of 
Health and Human Services (HHS), Substance Abuse and Mental Health 
Services Administration (SAMHSA) as meeting the minimum standards of 
subpart C of the HHS Mandatory Guidelines for Federal Workplace Drug 
Testing Programs and which is also certified by the College of American 
Pathologists (CAP) to perform Forensic Urine Drug Testing (FUDT).

[[Page 52158]]

    Medical Review Officer (MRO). A licensed physician who is 
responsible for receiving and reviewing laboratory results generated by 
a mine operator's drug-testing program and evaluating medical 
explanations for certain drug test results. An MRO can be an employee 
of the mine operator or a service agent.
    Persons performing safety-sensitive job duties. Those who perform 
job activities that are inherently dangerous on a regular and/or 
recurring basis and are required under 30 CFR parts 46 and 48 to take 
comprehensive miner training. Management and administrative personnel 
who supervise persons performing safety-sensitive job duties are also 
considered to perform safety-sensitive job duties. Therefore, 
throughout the rest of this part, the term ``miner'' is used to include 
such supervisors. General administrative and clerical personnel are not 
considered to perform safety-sensitive job duties.
    Post-accident testing. Testing for the misuse of alcohol or drugs 
that is triggered either by an occupational injury or an accident that 
is done to help determine whether alcohol and/or drugs were a factor in 
the injury or accident.
    Pre-employment testing. For alcohol: Testing of applicants after a 
conditional offer of employment has been made but prior to the first 
performance of safety-sensitive job duties. For drugs: Testing of 
applicants prior to the first performance of safety-sensitive job 
duties, irrespective of whether a conditional offer of employment has 
been made.
    Prohibited substances. Alcohol, and the following controlled 
substances, except when used according to a valid prescription: 
Amphetamines (including methamphetamines), barbiturates, 
benzodiazepines (e.g., Valium, Librium, Xanax), cannibinoids 
(marijuana/THC), cocaine, methadone, opiates (e.g., heroin, opium, 
codeine, morphine), phencyclidine (PCP), propoxyphene (e.g., Darvon), 
synthetic/semi-synthetic opioids (i.e., hydrocodone, hydromorphone, 
oxymorphone, oxycodone) and any other controlled substances designated 
by the Secretary.
    Random testing. Unannounced testing of miners assigned to safety-
sensitive job duties for use of alcohol or drugs selected through a 
scientifically arbitrary process without regard to personal identifying 
information.
    Reasonable suspicion testing. Testing for alcohol or drugs 
conducted when a supervisor documents observable signs and symptoms 
that lead the supervisor to suspect alcohol or drug use in violation of 
the alcohol- and drug-free workplace policy.
    Return-to-duty testing. Testing performed on any miner before 
resuming safety-sensitive job duties after having failed to test 
negative for alcohol or drugs, or following admission of alcohol or 
drug use and after satisfactory completion of education and/or 
treatment prescribed by a Substance Abuse Professional (SAP).
    Safety-sensitive job duties. Any type of work activity where a 
momentary lapse of critical concentration could result in an accident, 
injury, or death.
    Service agent. Any person or entity possessing the required 
qualifications and/or certifications, other than an employee of the 
mine operator, who provides services specified under this part to mine 
operators in connection with MSHA alcohol- and drug-testing 
requirements, including but not limited to collectors, laboratories, 
MROs, Substance Abuse Professionals, or BATs.
    Split specimen. In drug-testing, a part of the urine specimen that 
is sent to the laboratory but not analyzed. Rather, it is retained 
unopened so that it can be sent to a second laboratory in the event 
that a miner requests that it be tested because he or she disputes the 
results reported by the first laboratory and verified by the MRO.
    Substance Abuse Professional (SAP). A specially trained and 
qualified person who evaluates miners who have violated a mine 
operator's alcohol- and drug-free workplace policy and makes 
recommendations concerning education, treatment, follow-up testing, and 
aftercare.
    Substituted specimen. A specimen with creatinine and specific 
gravity values that are so diminished that they are not consistent with 
human urine.
    Verified test. A drug-test result or validity testing result from a 
laboratory that has undergone review and final determination by an MRO.

Subpart B--Prohibitions


Sec.  66.100  Prohibited substances.

    (a) Prohibited substances, except when conditions of paragraph (b) 
of this section are met, shall not be permitted or used on or around 
mine property.
    (b) Miners who possess or have used a prohibited substance will not 
be in violation of this part provided that an MRO has determined that 
the miner has a valid prescription for the substance and is using it as 
prescribed.


Sec.  66.101  Prohibited behaviors.

    (a) Miners determined to have used a prohibited substance and/or to 
be under the influence of a prohibited substance as defined by Sec.  
66.3(p) shall not be allowed to perform safety-sensitive job duties.
    (b) Specifically, miners must not report for duty or remain on duty 
if they:
    (1) Are under the influence or impaired by alcohol as verifiable by 
a Blood Alcohol Concentration (BAC) of 0.04 percent or greater; or
    (2) Have used a prohibited substance as verifiable by a positive 
drug test, unless an MRO has determined that the miner has a valid 
prescription for the prohibited substance and is using it as 
prescribed; or
    (3) Have refused to submit to a drug or alcohol test or have 
adulterated or substituted his/her specimen in any such test.

Subpart C--Alcohol- and Drug-Free Mine Program Requirement


Sec.  66.200  Purpose and scope.

    The mine operator shall establish a written alcohol- and drug-free 
mine program that includes a written policy, an education and awareness 
program for nonsupervisory miners, a training program for supervisors, 
alcohol- and drug-testing, and referrals for assistance for miners who 
violate this rule.


Sec.  66.201  Written policy.

    (a) The alcohol- and drug-free mine program shall contain a written 
policy statement that shall be provided to all employees/miners and 
will inform them of the purpose of the policy; the prohibitions against 
the possession or use of prohibited substances; alcohol- and drug-
testing requirements; the consequences of policy violations; and 
training requirements. The policy will also reference these regulations 
and identify which miners are subject to the alcohol- and drug-testing 
provisions.
    (b) A mine operator must ensure that every miner has been informed 
of the policy. The proposed rule requires that a mine operator must 
provide a copy of the written policy to the miners' representative or 
post the policy on a bulletin board in a common area in the event that 
the miners do not have a representative. Mine operators may also choose 
to distribute the policy during the alcohol- and drug-free awareness 
training sessions or distribute the policy in an electronic format; 
however, these additional means of distribution are not required.
    (c) Mine operators may use the sample model policy statement 
available from MSHA or from the Web site at http://www.msha.gov.

[[Page 52159]]

Sec.  66.202  Education and awareness program for nonsupervisory 
miners.

    (a) Mine operators are required to provide education and awareness 
programs for nonsupervisory miners that meet the following 
requirements:
    (1) Each newly hired miner must receive a minimum of 60 minutes of 
training before such miner is assigned to safety-sensitive job duties. 
The training must inform them of:
    (i) The mine's alcohol- and drug-free mine policy, including 
alcohol- and drug-testing requirements;
    (ii) The dangers of alcohol and drug use and the impact of such use 
on safety in the mine;
    (iii) Actions to take when others are suspected of violating the 
policy; and
    (iv) Information about any available drug counseling, 
rehabilitation, and employee assistance programs (EAPs).
    (2) All nonsupervisory miners, on an annual basis, will receive a 
minimum of 30 minutes of training to review the elements in paragraph 
(a)(1) of this section.
    (3) Training must be delivered by a competent person knowledgeable 
about workplace substance abuse, these regulatory requirements, and the 
mine operator's policy. Mine operators may use the training materials 
available from MSHA or the Web site at http://www.msha.gov.
    (b) Training may be supplemented by written informational 
materials, including a list of company or community resources that 
miners can contact for assistance. Videos or other audio-visual 
materials may be used to supplement interactive training but cannot 
serve as the sole means of training.
    (c) The training requirements in this part can be delivered as part 
of other new miner and annual nonsupervisory miner refresher training 
required under parts 46 and 48 of this chapter but must be delivered in 
addition to the other topics required and cannot displace other 
existing requirements of parts 46 and 48 of this chapter.


Sec.  66.203  Training program for supervisors.

    (a) A training program for supervisors is required and must meet 
the following requirements:
    (1) Every supervisor authorized by the mine operator to make 
reasonable suspicion and post-accident testing determinations shall 
receive an initial two hours of training and one hour annually, that, 
at a minimum:
    (i) Reviews the topics covered in the nonsupervisory miner training 
described in Sec.  66.202 (a)(1)(i) through (iv);
    (ii) Makes them aware of their role in enforcing the alcohol- and 
drug-free workplace policy;
    (iii) Reviews the physical, behavioral, and performance indicators 
of probable drug use or alcohol misuse and prepares them to recognize 
and adequately document their observation of these signs of alcohol or 
drug impairment;
    (iv) Trains them to make reasonable suspicion determinations and 
what procedures to follow when such determinations are made;
    (v) Trains them to make post-accident determinations and what 
procedures to follow when such determinations are made;
    (vi) Trains them to make referrals to Substance Abuse Professionals 
or Employee Assistance Professionals and/or to community resources if 
they suspect a miner has an alcohol or drug problem but there has not 
been a known violation of the policy and there is insufficient evidence 
to warrant a reasonable suspicion test; and
    (vii) Trains them on what constitutes safety-sensitive job duties 
so that they understand who is subject to drug-testing.
    (2) All supervisors, on a annual basis, will receive a minimum of 
60 minutes of training to review the elements in paragraph (a)(1) of 
this section.
    (3) Training must be delivered by a competent person knowledgeable 
about workplace substance abuse, these regulatory requirements, and the 
mine operator's policy. Mine operators may use the training materials 
available from MSHA or the Web site at http://www.msha.gov.
    (b) Training may be supplemented by written informational 
materials, including a list of company or community resources that 
miners can contact for assistance. Videos or other audio-visual 
materials may be used to supplement interactive training but cannot 
serve as the sole means of training.


Sec.  66.204  Miner assistance following admission of use of prohibited 
substances.

    (a) Mine operators shall make miners and other employees who admit 
to the illegitimate and/or inappropriate use of prohibited substances 
aware of available assistance through an employee or miner assistance 
program, a Substance Abuse Professional (SAP), and/or other qualified 
community-based resources.
    (b) Miners who voluntarily admit to the illegitimate and/or 
inappropriate use of prohibited substances prior to being testing and 
seek assistance shall not be considered as having violated the mine 
operator's policy but shall be subject to the return-to-duty process 
specified in subpart E, Sec. Sec.  66.405-406. However, a positive test 
result during the return-to-duty process will be considered as a 
violation of the mine operator's policy.

Subpart D--Alcohol- and Drug-Testing Requirements


Sec.  66.300  Purpose and scope.

    (a) Mine operators shall implement an alcohol- and drug-testing 
program that is valid, reliable, and protects the privacy and 
confidentiality of the individual to be tested.
    (b) Mine operators must follow the U.S. Department of 
Transportation's (DOT) requirements found in 49 CFR part 40, Procedures 
for Transportation Workplace Drug Testing Programs, in which references 
to ``DOT'' shall be read as ``MSHA'' with the following exceptions: the 
split sample method of collection shall be used, and use of 
``bifurcated'' alcohol level for testing is excluded.
    (c) Mine operators are subject to all the requirements and 
procedures incorporated by part 66 and are responsible for the actions 
of their officials and representatives, and agents in carrying out 
these requirements.
    (d) Mine operators shall designate those who will be responsible 
for receiving test results and other communications from the MRO or BAT 
consistent with the requirements of this part. This designee will also 
be authorized by the mine operator to take immediate action(s) to 
remove miners from safety-sensitive job duties, or cause miners to be 
removed from these covered duties, and to make required decisions in 
the testing and evaluation processes. Mine operators cannot use 
contracted service agents to perform these functions.
    (e) A mine operator may use service agents to perform any of the 
other the functions required in this rule but may not designate or use 
a service agent to make drug-testing decisions or to receive alcohol-or 
drug-test results on behalf of the mine operator.
    (f) A mine operator that uses a service agent is responsible for 
ensuring that service agents meet all requirements and procedures set 
forth in DOT's requirements found in 49 CFR part 40, except as modified 
by paragraph (b) of this section. Only laboratories certified by CAP as 
well as by HHS/SAMHSA shall be used to test collected samples.


Sec.  66.301  Substances subject to mandatory testing.

    Tests will be conducted for the drugs listed below:
    (a) Alcohol,
    (b) Amphetamines (including methamphetamines),

[[Page 52160]]

    (c) Barbiturates,
    (d) Benzodiazepines (e.g., Valium, Librium, Xanax),
    (e) Cannabinoids (THC/marijuana),
    (f) Cocaine,
    (g) Methadone,
    (h) Opiates (heroin, opium, codeine, morphine),
    (i) Phencyclidine (PCP),
    (j) Propoxyphene (e.g., Darvon), and
    (k) Synthetic/Semi-synthetic Opioids (oxymorphone, oxycodone, 
hydromorphone, hydrocodone).


Sec.  66.302  Additional testing.

    The Secretary of Labor shall be permitted to designate additional 
substances for which all mine operators must test.


Sec.  66.303  Circumstances under which testing will be required.

    Testing will be conducted in the following circumstances: Pre-
employment; randomly at unannounced times; post-accident if the miner 
may have contributed to the accident; based on reasonable suspicion 
that a miner has used a prohibited substance; and as part of a return-
to-duty process for miners who have violated the rule.


Sec.  66.304  Pre-employment testing.

    (a) Any applicant for a safety-sensitive position must be tested 
for the presence of drugs before performing safety-sensitive job 
duties.
    (b) Any applicant for a safety-sensitive position must receive an 
alcohol test after a conditional offer of employment has been made and 
before performing safety-sensitive job duties.
    (c) The mine operator must treat all miners performing safety-
sensitive job duties the same for the purpose of pre-employment 
alcohol- and drug-testing (i.e., mine operators must not test some 
miners and not others). If it is unclear whether an applicant will be 
assigned to such duties, it is at the mine operator's discretion to 
test all applicants; or test only when it is known that the applicant 
will be assigned to perform safety-sensitive job duties.
    (d) The mine operator must not allow a miner to begin performing 
safety-sensitive job duties if the result of the miner's test indicates 
a blood alcohol concentration of more than 0.04 percent or if he/she 
has used a prohibited substance without a valid prescription.
    (e) Any incumbent miner who is to be transferred to a position 
involving the performance of safety-sensitive job duties must be tested 
for the presence of alcohol or drugs prior to beginning the performance 
of safety-sensitive job duties and must receive negative test results.
    (f) An incumbent miner that has failed or refused a pre-employment 
alcohol- and drug-test administered under this part, shall not perform 
safety-sensitive job duties until that miner provides the mine operator 
proof of having successfully completed a referral, evaluation, and 
treatment plan, and tested negative on return-to-duty testing as 
described in subpart E, Sec. Sec.  66.405-66.406.
    (g) A mine operator shall have the discretion to conduct such 
testing on incumbent miners who are performing safety-sensitive job 
duties as of the effective date of this rule as long as all such miners 
are tested.


Sec.  66.305  Random testing.

    Mine operators must randomly conduct unannounced alcohol and drug 
tests of their miners as described in paragraphs (a) through (e) of 
this section:
    (a) A mine operator shall use random testing rates for alcohol and 
drugs of 10 percent. The random pool for unannounced alcohol and drug 
testing during each calendar year shall consist of miners who perform 
safety-sensitive job duties and their supervisors.
    (b) Miners who are on leave or otherwise absent from the workplace 
will be tested at the next available opportunity, that is, immediately 
upon their return to work.
    (c) Each mine operator shall ensure that random alcohol and drug 
tests conducted under this part are unannounced and unpredictable. The 
dates for administering random tests must be periodic and irregularly 
scheduled throughout the calendar year. The mine operator has the 
discretion to determine how frequently testing will occur but it must, 
at a minimum, meet the 10 percent floor established by this part.
    (d) The selection of miners for random alcohol and drug testing 
shall be made by a scientifically valid method, such as a random number 
table or a computer-based random number generator that is matched with 
miners' payroll identification numbers, or other comparable unique 
identifying numbers. Under the selection process used, each miner shall 
have an equal chance of being tested each time selections are made.
    (e) Each mine operator shall ensure that any miner performing a 
safety-sensitive duty at the time of the notification ceases to perform 
the safety-sensitive duty and proceeds to the testing site immediately.


Sec.  66.306  Post-accident testing.

    (a) A mine operator is required to conduct alcohol and drug testing 
of certain miners after certain accidents or workplace injuries occur. 
Accidents and injuries requiring post-accident testing include 
occupational injuries requiring medical treatment beyond first aid and 
accidents that occur while a miner is operating a piece of equipment or 
performing a work activity that causes or contributes to an accident, 
injury, or death. Nothing in this section shall be construed to require 
the delay of necessary medical attention for the injured following an 
accident or to prohibit a miner from leaving the scene of an accident 
for the period necessary to obtain assistance in responding to the 
accident or to obtain necessary emergency medical care.
    (1) Fatal accidents. As soon as is practicable following an 
accident involving the loss of human life, a mine operator shall 
conduct alcohol and drug tests on each surviving miner involved in any 
work activity that could have contributed to the accident, injury, or 
death as determined by the mine operator, using the best information 
available at the time of the decision. The mine operator shall also be 
authorized and required to have a toxicology test conducted on the 
deceased that at a minimum tests for all the substances listed in Sec.  
66.301.
    (2) Nonfatal accidents. As soon as is practicable following an 
accident or occupational injury not involving the loss of human life, 
the mine operator shall conduct alcohol and drug tests on each miner 
involved in any work activity that could have contributed to the 
accident or injury, as determined by the mine operator, using the best 
information available at the time of the decision.
    (b) A mine operator shall ensure that a miner required to be tested 
for alcohol under this section is tested as soon as is practical but 
within eight hours of the accident or injury. If an alcohol test is not 
administered within eight hours following the accident or injury, the 
mine operator shall cease attempts to conduct the test and prepare and 
maintain on file a record stating the reasons that the test was not 
promptly administered.
    (c) A mine operator shall ensure that a miner required to be drug 
tested under this section is tested as soon as is practical but within 
32 hours of the accident or injury. If a drug test is not administered 
within 32 hours following the accident or injury, the mine operator 
shall cease attempts to conduct the test and prepare and maintain on 
file a

[[Page 52161]]

record stating the reasons that the test was not promptly administered.
    (d) A miner who is subject to post-accident testing who fails to 
remain readily available for such testing, including notifying the mine 
operator of his or her location if he or she leaves the scene of the 
accident prior to submission to such test, must be deemed by the 
employer to have refused to submit to testing.
    (e) The results of blood, urine, or breath tests for the use of 
prohibited substances conducted by federal, state, or local officials 
having independent authority for the test, shall be considered to meet 
the requirements of this section provided such tests conform to the 
applicable federal, state, or local testing requirements, and that the 
test results are obtained by the mine operator. Such test results may 
be used only when the tests have been performed within the applicable 
time limits (eight hours for alcohol and 32 hours for drugs) and the 
mine operator has been unable to perform separate post-accident tests 
within those time periods.
    (f) Mine operators shall determine when post-accident testing will 
be ordered and which miners will be tested. Those making such 
determinations must have received the necessary training (as specified 
in subpart C) needed to make such determinations prior to doing so.
    (g) If MSHA investigators arrive at the scene of an accident within 
the 32-hour window and determine that miners not originally given a 
post-accident test may have contributed to the accident, the MSHA 
investigator can so order the mine operator to have such testing done 
at the mine operator's expense.


Sec.  66.307  Reasonable suspicion testing.

    (a) A mine operator shall conduct an alcohol and/or drug test when 
the mine operator has reasonable suspicion to believe that the miner 
has misused a prohibited substance.
    (b) A mine operator's determination that reasonable suspicion 
exists shall be based on specific, contemporaneous, articulable 
observations concerning the appearance, behavior, speech, or body odors 
of the miner. A supervisor, or other company official who is trained in 
detecting the signs and symptoms of the misuse of alcohol and/or drugs, 
must make the required observations.
    (c) Testing is authorized under this section only if the 
observations required by paragraph (b) of this section are made during, 
immediately preceding, or just after the shift. A mine operator may 
direct a miner to undergo reasonable suspicion testing immediately 
before, during, or after the miner is to perform safety-sensitive job 
duties.
    (d) A mine operator shall ensure that a miner required to be tested 
for alcohol under this section is tested as soon as is practical but 
within eight hours of the mine operator's determination that reasonable 
suspicion exists. If an alcohol test is not administered within eight 
hours, the mine operator shall cease attempts to conduct the test and 
prepare and maintain on file a record stating the reasons that the test 
was not promptly administered.
    (e) A mine operator shall ensure that a miner required to be tested 
for drugs under this section is tested as soon as is practical but 
within 32 hours of the mine operator's determination that reasonable 
suspicion exists. If a drug test is not administered within 32 hours, 
the mine operator shall cease attempts to conduct the test and prepare 
and maintain on file a record stating the reasons that the test was not 
promptly administered.
    (f) Those authorized to make decisions on behalf of the mine 
operator as to when reasonable suspicion testing will be ordered and 
which miners will be tested will receive the necessary training needed 
to make such determinations prior to doing so as specified in subpart 
C. The mine operator will determine who is authorized to make these 
decisions.
    (g) If the collection site is not on the mine property, miners 
being tested because of reasonable suspicion should not be allowed to 
drive themselves to the site, but rather shall be accompanied by 
authorized mine personnel.

Subpart E--Operator Responsibilities, Actions, and Consequences


Sec.  66.400  Consequences to miner for failing an alcohol or drug test 
or refusal to test.

    (a) A mine operator, upon a miner's verified positive drug test 
result, an alcohol test with a result indicating a blood alcohol 
concentration of 0.04 percent or greater, a refusal to test (including 
by adulterating or substituting a urine specimen), or any other 
violation of the mine operator's policy prohibiting possession, 
impairment from or use of alcohol or drugs must not return the miner to 
the performance of safety-sensitive job duties until or unless the 
miner successfully completes the return-to-duty process of Sec. Sec.  
66.405 and 66.406 of this part. The miner may be assigned to duties 
that are not safety-sensitive at the mine operator's discretion.
    (b) Mine operators shall not terminate miners who violate the mine 
operator's policy for the first time (e.g., by testing positive for 
alcohol or drugs). Rather, those miners testing positive for the first 
time, who have not committed some other separate terminable offense, 
shall be provided job security while the miner seeks appropriate 
evaluation and treatment. The miner will be able to be reinstated and 
allowed to resume performance of safety-sensitive job duties provided 
the miner complies with return-to-duty requirements outlined in 
Sec. Sec.  66.405 and 66.406.
    (c) For subsequent violations of the mine operator's alcohol- and 
drug-free mine policy, the mine operator shall specify appropriate 
disciplinary steps, up to and including termination. At a minimum, 
miners shall not be allowed to perform safety-sensitive job duties 
until such time that they have satisfactorily complied with the return-
to-duty process as specified in Sec. Sec.  66.405 and 66.406 of this 
rule.


Sec.  66.401  Operator actions pending receipt of test results.

    (a) Miners who have been selected for random testing shall be 
returned to duty immediately following the test and while awaiting the 
results.
    (b) Miners who have been tested for alcohol and/or drugs based on 
reasonable suspicion or because the mine operator has determined that 
they may have contributed to an accident may be suspended from 
performance of safety-sensitive job duties until the verified test 
results have been received.
    (c) All miners suspended from performing safety-sensitive job 
duties pending results should be treated in the same manner with 
respect to this rule and no action adversely affecting the miner's pay 
and benefits shall be taken pending the verified outcome of the testing 
process.
    (d) In the event that a miner does not work at all during the 
suspension period (i.e., the miner is not assigned non-safety-sensitive 
job duties) and the test result is verified positive, mine operators 
may choose to withhold pay for the suspension period in accordance with 
mine operator policy and/or any existing labor-management agreement.


Sec.  66.402  Substantiating legitimate use of otherwise prohibited 
substances.

    Although mine operators shall not receive test results until after 
an MRO has verified them, mine operators must ensure miners have 
adequate opportunity to demonstrate that their use of prescription 
drugs is legitimately authorized. However, possession of a valid 
prescription from a medical professional in and of itself may not 
constitute sufficient proof of legitimate and appropriate use. It is 
the

[[Page 52162]]

responsibility of the MRO to make this determination. If the miner 
asserts that the presence of a drug or drug metabolite in his/her 
specimen results from taking prescription medication, the MRO must 
review and take all reasonable and necessary steps to verify the 
authenticity of all medical records the miner provides. The MRO may 
contact the miner's physician or other relevant medical personnel and/
or direct the miner to undergo further medical evaluation.


Sec.  66.403  Operator actions after receiving verified test results.

    (a) A mine operator who receives a verified positive drug test 
result or a verified adulterated or substituted drug test result must 
immediately remove the miner involved from performing safety-sensitive 
job duties and refer the miner to a qualified SAP. Action must be taken 
upon receiving the initial report of the verified test result. A mine 
operator must not wait to receive the written report or the result of a 
split specimen test.
    (b) A mine operator who receives a blood alcohol concentration test 
result of 0.04 percent or higher must immediately remove the miner 
involved from performing safety-sensitive job duties and refer the 
miner to a qualified SAP. A mine operator must not wait to receive the 
written report of the result of the test.
    (c) A mine operator must not alter an alcohol or drug test result 
transmitted by a MRO or BAT.
    (d) In the event that the MRO verifies that a test is negative or 
cancels the test:
    (1) The miner will be immediately returned to the performance of 
safety-sensitive job duties if he/she has been removed based on 
reasonable suspicion;
    (2) The miner will suffer no adverse personnel consequences or loss 
in pay; and
    (3) No individually identifiable record that the employee had a 
confirmed laboratory positive, adulterated, or substituted test result 
will be retained. The record of the test will reflect that it was a 
negative test.


Sec.  66.404  Evaluation and referral.

    (a) A miner who has failed a test for prohibited substances or 
refused or adulterated a test cannot perform safety-sensitive job 
duties until a SAP evaluation has been completed and the miner 
successfully complies with the SAP's recommendations for education and/
or treatment.
    (b) Mine operators must provide to each such miner (including an 
applicant or new miner) a listing of SAPs available to the miner and 
acceptable to the mine operator. This listing should include the names, 
addresses, and telephone numbers of the available SAPs. The miner may 
avail himself or herself of the services of the SAP to receive an 
evaluation and referral for treatment. The miner shall be allowed to 
return to performance of safety-sensitive job duties following a first-
violation violation and provided the miner complies with the return-to-
duty and follow-up testing provisions found in Sec. Sec.  66.405 and 
66.406.
    (c) The SAP's recommendation for assistance will serve as a 
referral source to assist the miner's entry into an education and/or 
treatment program.
    (d) Miners who have failed or refused an alcohol or drug test may 
not seek a second SAP's evaluation in order to obtain a different 
recommendation, nor may a mine operator do so if the miner has already 
been evaluated by a qualified SAP. If the miner, contrary to this 
paragraph, has obtained a second SAP evaluation, mine operators may not 
rely on it for any purpose under this part. Only the SAP who made the 
initial evaluation may modify his or her initial evaluation and 
recommendations based on new or additional information (e.g., from an 
education or treatment program).
    (e) While the SAP's referral shall always be made at the miner's 
first offense, employers may choose to offer additional opportunities 
for treatment and return-to-work, but must do so in a way that is 
uniform and consistent.


Sec.  66.405  Return-to-duty process.

    (a) After miners testing positive for alcohol or drugs are assessed 
by a SAP and follow that SAP's educational or treatment 
recommendations, they may return to safety-sensitive job duties upon 
submitting to return-to-duty and follow-up testing as described in 
Sec. Sec.  66.406.
    (b) SAPs must re-evaluate the miner to determine if the miner has 
successfully carried out the recommended education and/or treatment so 
that the mine operator can decide whether to return the miner to 
safety-sensitive job duties.
    (c) Should a SAP provide written notice that the miner has not 
successfully complied with the SAP's recommendations, the mine operator 
must not return the miner to the performance of safety-sensitive job 
duties and may take action consistent with company policy and/or labor-
management agreements.
    (d) Although the SAP can verify completion of or compliance with 
recommended treatment, it is the mine operator who decides whether to 
put the miner back to work in a safety-sensitive position. However a 
miner who has successfully completed the recommended treatment and 
passed the return-to-duty tests may not be discharged for his/her first 
offense.


Sec.  66.406  Return-to-duty and follow-up testing.

    (a) Miners must have an alcohol test with a blood alcohol 
concentration of less than 0.04 percent and a negative return-to-duty 
drug-test result before resuming performance of safety-sensitive job 
duties.
    (b) A mine operator shall conduct follow-up testing of each miner 
who returns to duty, as follows:
    (1) A SAP is the sole determiner of the number and frequency of 
follow-up tests needed for a particular miner and whether these tests 
will be for alcohol, drugs, or both. If the miner had a positive drug 
test, but the SAP evaluation or the treatment program professional 
determines that the miner also has an alcohol problem, a SAP shall 
require that the miner have follow-up tests for both alcohol and drugs.
    (2) A SAP must establish a written follow-up testing plan for each 
miner who has committed a violation of this rule, and who seeks to 
resume the performance of safety-sensitive job duties only after the 
miner has successfully complied with recommendations for education and/
or treatment.
    (3) At a minimum, a miner will be subject to six unannounced 
follow-up tests in the first 12 months of resuming safety-sensitive job 
duties. It is possible, however, that the SAP may require more than six 
unannounced follow-up tests, and that the testing be continued for up 
to 24 months after the miner resumed his/her safety-sensitive job 
duties.
    (4) The mine operator may not impose additional testing 
requirements (e.g., under company authority) on the miner that go 
beyond the SAP's follow-up testing plan.
    (5) The mine operator must carry out the SAP's follow-up testing 
requirements and may not allow the miner to continue to perform safety-
sensitive job duties unless follow-up testing is conducted as directed 
by the SAP. Mine operators failing to do so will be in violation of 
this rule.
    (6) Mine operators have discretion in scheduling follow-up tests 
but must ensure that the tests are unannounced with no discernable 
pattern as to their timing, and that the miner is given no advance 
notice.
    (7) Other tests conducted (e.g., those carried out under the random 
testing

[[Page 52163]]

program) cannot substitute for this follow-up testing requirement.

Subpart F--Recordkeeping and Reporting


Sec.  66.500  Recordkeeping requirements.

    (a) Protection of employee records.
    (1) Records of drug- or alcohol-test results received are 
confidential communications between the mine operator and the miner.
    (2) If records are stored electronically, a mine operator must 
ensure that the records are secured.
    (b) Mine operators must keep and retain the following test records 
for at least three years:
    (1) The number of workers in safety-sensitive positions;
    (2) The total number tested;
    (3) The number of positive alcohol and drug tests for each 
substance; and
    (4) A record of which miners were tested, the dates of their tests, 
their test results, and return-to-duty and follow-up test results; 
these records should be retained separately from aggregate data on 
violations and violation rates.
    (c) In addition, mine operators are required to:
    (1) Include post-accident test results in accident reports 
regardless of whether the test(s) are positive or negative.
    (2) Annually compute and retain records of the percentage of 
positive random alcohol and drug tests.
    (d) MSHA inspections:
    (1) Mine operators' alcohol- and drug-free workplace policies and 
program descriptions should be made available to MSHA inspectors upon 
their request; however, this rule does not require routine review of 
alcohol- and drug-free workplace programs by MSHA inspectors.
    (2) Any and all alcohol- or drug-test results will be made 
available upon request of MSHA inspectors or investigators and will be 
used in assessing overall compliance with safety regulations as well as 
in determining the cause of accidents.

 [FR Doc. E8-20561 Filed 9-5-08; 8:45 am]
BILLING CODE 4510-43-P