MSHA
Proposed Rules
Alcohol- and Drug-Free Mines: Policy, Prohibitions, Testing, Training, and Assistance
[ 9/8/2008]
[ PDF]
FR Doc E8-20561
[Federal Register: September 8, 2008 (Volume 73, Number 174)]
[Proposed Rules]
[Page 52135-52163]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08se08-23]
[[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
[[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: zzMSHA-comments@dol.gov. 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 zzMSHA-
comments@dol.gov, 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 carr.elena@dol.gov (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
[[Page 52139]]
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
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