Alcohol- and Drug-Free Mines: Policy, Prohibitions, Testing, Training, and Assistance, 52136-52163 [E8-20561]

Agencies

• DEPARTMENT OF LABOR
• Mine Safety and Health Administration

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



[[Page 52135]]

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Part V





Department of Labor





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Mine Safety and Health Administration



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30 CFR Parts 56, 57, and 66



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

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

[[Page 52136]]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 56, 57, and 66

[1219-AB41]


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

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

ACTION: Proposed rule.

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

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

ADDRESSES: Comments must be clearly identified with ``RIN 1219-AB41'' 
and may be sent by any of the following methods:
    (1) Federal e-Rulemaking Portal: https://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 https://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 https://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

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

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

III. Discussion of the Proposed Rule

A. Nature, Extent, and Impact of the Problem

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

[[Page 52140]]

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

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

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

[[Page 52141]]

C. Basis of Proposal

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

IV. Section-by-Section Discussion

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

[[Page 52142]]

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

Subpart A--General

Section 66.1 Purpose

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

Section 66.2 Applicability

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

[[Page 52143]]

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

Section 66.3 Definitions

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

Subpart B--Prohibitions

Section 66.100 Prohibited Substances

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

[[Page 52144]]

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

Section 66.101 Prohibited Behaviors

    This section would specify the prohibited behaviors and what is 
considered evidence of those behaviors, and thus a violation of the 
rule. Under the pr