IN THE MATTER OF:                 )
                                  )
30 C.F.R. PARTS 56, 57 AND 66     )
ALCOHOL AND DRUG-FREE MINES:      )
POLICY PROHIBITIONS, TESTING,     )
TRAINING AND ASSISTANCE;          )
PROPOSED RULE                     )



























Pages:	1 through 292

Place:	Washington, D.C.

Date:		October 14, 2008

DEPARTMENT OF LABOR
MINE SAFETY AND HEALTH ADMINISTRATION

IN THE MATTER OF:                 )
                                  )
30 C.F.R. PARTS 56, 57 AND 66     )
ALCOHOL AND DRUG-FREE MINES:      )
POLICY PROHIBITIONS, TESTING,     )
TRAINING AND ASSISTANCE;          )
PROPOSED RULE                     )

			CISCO Conference #250
			Ronald Reagan Building
			1300 Pennsylvania Avenue, N.W.
			Washington, D.C.

			Tuesday,
			October 14, 2008

		The parties met, pursuant to the notice, at 
9:08 a.m.

		BEFORE:  PATRICIA SILVEY, MSHA
		         Director

		APPEARANCES:

		PANEL MEMBERS:
		PATRICIA SILVEY, MSHA
		JOHN ARRINGTON, MSHA
		GENE AUTIO, MSHA
		KEVIN BURNS, MSHA
		ELENA CARR, DOL 
		SHEILA MCCONNEL, DOL  
		LINDA ZEILER, MSHA

		SPEAKERS:
		ALBERT ALOIA, CONSOL Energy, Inc.
		RICK ALTMAN, United Mine Workers of America
		LEONARD BAILEY, United Mine Workers of America
		LOU BARLETTA, CONSOL Energy, Inc.
		HELEN BLEVINS, CONSOL Energy, Inc.
		RON BOWERSOX, United Mine Workers of America		
		DALE BYRAM, United Mine Workers of America
		DWIGHT CAGLE, United Mine Workers of America
		UNA CONNOLLY, National Stone Sand & Gravel
	  	Association

		APPEARANCES:  (Cont'd.)

		SPEAKERS: (CONT'D)

		MIKE CRUM, FMC Green River		
		DAWN DREGIER, SRS
		DARYL DEWBERRY, United Mine Workers of America
		ESTITTY, United Mine Workers of America
		BILL FERDINAND, Barrick Gold
		JOHN GALLICK, Foundation Coal
		CHRIS HAMILTON, West Virginia Coal Association
		MARTIN HAUGHT, United Mine Workers of America
		BRIAN HENDRIX, MARG Group
		JENNIFER HERNER, Arch Coal
		MR. HODGEKISON
		SAM HOLLINS, Virginia Transportation
		Construction Alliance
		JENNIFER HONOR, Esquire, MSHA
		TANYA JAMES, United Mine Workers of America
		ANNE KELHART, National Stone Sand & Gravel
		  Association
		MAX KENNEDY, United Mine Workers of America
		RAY LEE, United Mine Workers of America
		KEVIN LUKETIC, United Mine Workers of America
		DALE LYDIC, United Mine Workers of America
		TIM MCCREARY, Thunder Basic Coal Co.		
		DENNIS O'DELL, United Mine Workers of America
		TONY O'NEAL, United Mine Workers of America
		PRILLAMAN, National Lime Association
		WILLIAM RAYBURN, Iluka Resources, Inc.
		RALPH SANICH, Inter West Mining Co.
		MR. JIM SHARPE
		LARRY SPENCER, United Mine Workers of America
		BRUCE WATZMAN, National Mining Association
		JIM WEEKS, United Mine Workers of America
		THOMAS WILSON, United Mine Workers of America
		MICHAEL WRIGHT, United Steelworkers
		GLEN YOUNG, United Mine Workers of America

	P R O C E E D I N G S
	(9:08 a.m.)
		MS. SILVEY:  To everybody who can hear me, please.  We're getting ready to start this morning's hearing.  Good morning.  My name is Patricia W. Silvey, and I'm the Director of the Mine Safety and Health Administration, Office of Standards, Regulations and Variances.  I will be the moderator of this public hearing on MSHA's proposed rule for Alcohol and Drug-Free Mine Policy, Prohibitions, Testing, Training and Assistance.
		On behalf of Acting Assistant Secretary of Labor for Mine Safety and Health, Richard E. Stickler, I want to welcome all of you to this hearing today, including those of you who are joining us via webcast and via audiocast.  At this time, I will provide the logistics surrounding today's hearing.  As most of you know by now, the hearing is being held via webcast in Washington, D.C., Pittsburgh, Pennsylvania and Denver or Englewood, Colorado.
		Persons will also be able to make oral presentations on the proposal in Beckley, West Virginia, at our mine academy, Madisonville, Kentucky, and MSHA's co-district office, Birmingham, Alabama, MSHAs co-district office in Price, Utah, at the local Holiday Inn.
		As I am talking about the logistics, the persons who are making presentations here in Washington office where we are, as people get ready to do their presentations I would ask them to come to the table where we're seated, and the persons who are speaking, if you have members of your panel, the panel members can take the end seat, but persons who are speaking if you would take the seat from the end because the seat from the end will allow you to be seen on the webcast.
		Also, since I'm talking about logistics, I'm going to do this right now, and I'm going to do this in some part because I feel sort of for the court reporter, but as most of you know, we always ask you to try to call me.  We encourage you to do that, and I think I put in the Federal Register notice that I strongly encourage people to do that, so I'm going to take the persons in the order in which they signed up first, and then I'm going to go to the places where we have audio cast.
		First, starting with Beckley, West Virginia.  In a way, I'm sort of giving people notice so you will be prepared, and I've asked my panel to sort of remind me.  Then I'll go from Beckley to Madisonville, Kentucky, and do all the persons who wish to make audio presentations there, and then from Madisonville to Birmingham, Alabama, and from Birmingham to Price, Utah.
		We're going to do it in that order so that people are on notice as to how it's going to go.  At this point, I'd like to introduce the members of the MSHA panel starting with to my right.  To my right, we have Elena Carr, and Elena is the Department of Labor Drug Policy Coordinator.  To her right is Linda Zeiler.  Linda is the Deputy Director in MSHA's Office of Technical Support.
		To Linda's right is Kevin Burns, and Kevin is in Educational Policy Development, and he is the Director of the Office of Small Mines.  To my left is Sheila McConnell, and Sheila is with the Office of the Assistant Secretary for Policy.  We have three people who are members of our panel who are seated behind us.  Because of the logistics here, they had to be seated behind us.  Gene Autio.  Gene is with our Office of Metal/Non-Metal Mine Safety and Health.
		Next to Gene is John Arrington.  John is with the Office of Coal Mine Safety and Health, and obviously last but certainly not least is our learned counsel, our lawyer, Jennifer Honor, so those are the members of the panel.  As most of you know, the comment period for the proposal will close on October 29 at midnight, Eastern Daylight Savings Time, and I want to reiterate Eastern Daylight Savings Time.  You can view the comments on the Agency's website at www.msha.gov.
		The rules.  The proposal, as many of you know, would amend the existing metal and non-metal standards for the possession and use of intoxicating beverages and narcotics and make a new standard applicable to all mines.  The proposal will 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 for assistance for miners and supervisors who violate the policy.
		The proposal would also require those who violate the prohibitions to be removed from the performance of safety sensitive job duties until they successfully complete the recommended treatment and their alcohol and drug-free status is confirmed by return-to-duty test.
		As part of its mission to improve safety and health conditions in mines, MSHA has proposed this rule to protect safety of all miners from the dangers of alcohol or drug use at mines, by prohibiting miners from using, possessing or being under the influence of alcohol or drugs while performing safety sensitive job duties.
		Before I go further in discussing the proposals I want to describe the environment of the Department of Labor, Working Partners for an Alcohol and Drug-free Workplace, or Working Partners, in the development of this proposal.  Since the late 1980s, Working Partners has educated businesses about the impact of workplace substance abuse on productivity and safety, and equipped them with tools and resources to address the problem.
		Working Partners provides consultation and assistance to all DOL, Department of Labor, programs since workplace substance abuse affects many of the department's policies and missions.  Working Partners has expertise in the development of five-step drug-free workplace programs, and has worked closely with MSHA to develop this proposal.
		Thus, the proposal represents a coordinated effort between MSHA and Working Partners that draws up on their collective expertise and experience in helping businesses including mine operators to establish drug-free workplace programs that can reduce accidents and injuries.  Under the proposal, the possession or use of prohibited substances, except when are used according to a valid prescription, is prohibited.
		The alcohol and drug test provisions will apply only to mines who perform safety sensitive job duties.  Under the proposal, a safety sensitive position is defined as a miner, who is required to have comprehensive training under Parts 46 and 48, as applicable.  Managers who supervise these miners are also considered to hold safety-sensitive positions under the proposal.  Administrative personnel would be exempt from the proposal.
		Under the proposal, mine operators would be required to establish an alcohol and drug-free mine program that includes a written policy.  A mine's written policy could be tailored to the specific conditions at the mine.  However, the policy must address the purpose of the policy.  It must contain a clear description of prohibited behavior.
		It must outline the means, including testing, for determining if the policy has been violated, including explanation of the consequences for violating the policy and include requirements for training.  MSHA intends to assist mine operators in developing their policy by providing a sample template that can be used to address all required elements of the proposal.
		Operators can tailor the template to the specific needs and conditions of their mine.  A mine operator must assure that every miner has been informed of the policy, and the proposal would require that the policy be reviewed during training and made available upon request to miners and their representatives.
		Each operator would be required to implement an education and awareness program for nonsupervisory miners and their supervisors to provide them with the information they need to fully understand and comply with the proposal.  Miners who are required to take comprehensive training under existing Parts 46 and 48 would be required to take the training under the proposal.
		The proposal would require newly hired miners to receive 60 minutes of training before they are assigned to safety sensitive job duties and nonsupervisory miners would be required to receive at least 30 minutes of annual retraining.  The proposal would require that time allotted to this training be added to the total number of hours required under the existing standard so they have sufficient time to cover all the training topics.
		Operators would be required to implement training programs for its supervisors and to make them aware of their responsibilities for assuring compliance with the proposal.  Under the proposal, supervisors would have to receive at least two hours of initial training and one hour of training annually.
		The proposal would require operators to make miners who voluntarily admit use of prohibited substances aware of available assistance through an employee- or miner-assistance program, a substance abuse professional and other qualified community-based resources.  Under the proposal, mine operators would be required to implement an alcohol and drug testing program that is valid, reliable and protects the privacy and confidentiality of miners' testing.
		Mine operators would be required to follow the U.S. Department of Transportation, or DOT, their drug and alcohol testing requirements in 49 C.F.R. Part 40, Procedures for Transportation Workplace Drug Testing Program.
		Although operators would be responsible for implementing the testing program and making decisions as to when to test consistent with the DOT, mine operators may use qualified service agents to carry out the collection, laboratory analysis and medical review and verification of test results.
		Consistent with the DOT drug and alcohol procedures, MSHA's proposal would require testing for alcohol and the following five controlled substances:  amphetamines, including methamphetamines; cannibinoids, meaning marijuana or THC; cocaine; opiates and PCP, phencyclidine.  The proposal also includes testing of barbiturates, benzodiazepines, methadone, propoxyphene and synthetic and semi-synthetic opioids, specifically hydrocodone, hydromorphone, oxymorphone and oxycodone.
		I'm going to write all these names out for everybody in here and give you a little card with the names on them.  There will be a test at the end of the comment period, a test for me, too.  The proposal would allow operators to test for additional substances beyond those in the proposal and would allow the secretary of labor to add to the list of prohibited substances.
		Consistent with DOT procedures, testing for drugs would be done using urine as a specimen and alcohol testing would be done using breathalyzer.  However, unlike the DOT procedures that have a bifurcated standard, no actions to remove miners from work would be required unless the result showed that the Blood Alcohol Content, or the BAC, level is .04 or greater and is deemed to be a positive test.
		Under the proposal, testing would be conducted in the following circumstances:  Pre-employment, randomly at unannounced times, post-accident if a miner may have contributed to the accident based on a 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 rules.
		Under the proposal, miners who fail an alcohol or drug test would be removed from the performance of safety-sensitive job duties until they complete a return-to-duty process.  During the time required to complete the process, the line operator may, but would not be required to, assign the miner to non-safety sensitive job duties.  A miner found to be in violation of the alcohol and drug-free mine policy for the first time would be allowed to complete treatment.
		If treatment is successfully completed, and miners comply with the return-to-duty requirements, they would be allowed to resume safety sensitive job duties.  Operators would address subsequent violations at their discretion.  The proposal would prohibit non-operators from taking adverse action affecting the miner's case prior to receiving verified test results.  The Medical Review Officer, or MRO, would be responsible for providing test results to the mine operator.
		That MRO process would include determining whether a miner possesses a valid prescription of any prohibited substances, and if so, whether the miner is using the substance in accordance with the prescription.  The proposal would require mine operators who receive verified positive results to immediately remove the affected miner from safety sensitive duties and refer the miner to a Substance Abuse Professional, or SAP, for assessment.
		Miners who have failed their test or refuse to submit to a test would be prohibited from performing safety-sensitive job duties until they have been evaluated by an SAP and complied with the SAP's recommendations for education and/or treatment.  After completing the SAP's recommendations, the miner would be re-evaluated by SAP to determine whether the miner can return to performance of safety-sensitive duties.
		The proposal would require that operators maintain records related to alcohol and drug testing.  DOT regulations require mine operators to use OMB-approved forms to document the integrity and security of alcohol and drug tests.  These forms are the alcohol test forms and the control custody forms.  MSHA has estimated the economic impact of the proposal and included are discussions of the costs and benefits in the preamble as well as in the preliminary regulatory economic analysis.
		In the preamble, MSHA included a complete discussion of a number of specific requests for comment.  At this point, I would like to briefly mention some of them.  MSHA seeks comments on the following:  The proposed determination of who performs safety-sensitive job duties.  In other words, MSHA's definition of safety-sensitive job duties in the proposal; the proposed list of drugs that are identified as prohibited substances and the need for flexibility to include additional drugs;
		Data regarding the specific drug compounds to be tested, specifically the target, parent drug and the metabolite to be tested and the quantitative concentrations of these drugs and/or metabolite to determine at initial testing presumptive positive results and a separate confirm test result; removal from performing safety-sensitive job duties if the blood alcohol level is .04 percent or higher; proposal requirements for the type of training for miners and their supervisors;
		The proposal to incorporate DOT's alcohol and drug-testing procedures by reference, the proposal to use laboratories that have been certified by the U.S. Department of Health and Human Services and the College of American Pathologists; the proposal to allow the use of service agents to perform specimen collection, testing, medical review officer and substance abuse professional functions;
		The proposed circumstance under which alcohol and drug testing is required; the proposed rate that MSHA used for random testing; experiences of operators who already test for a similar panel of drugs and their experiences, their differentiating legitimate from unauthorized use; the proposed action that mine operators must take upon receiving alcohol and drug test results; the proposed requirements for substance abuse professionals but not proposed requirements for an employee assistance program;
		The evaluation and referral process and the role of the substance abuse professional in recommending treatment and determining compliance with the treatment plan; the proposal for return-to-duty and followup testing; all data and assumptions that the Agency used to develop the estimates of information collection burdens and cost estimate and all other data and assumptions that the Agency used in the proposal.
		As you address these provisions, and many of you have heard me say this many times before, even in your testimony to us today or in your written comments, please be as specific as possible and include in your comments your specific suggested alternative, if you have any, your suggested rationale, your suggestions with respect to safety and health benefits to miners and specific data to support your comments.  Please include any technological and economic feasibility information as appropriate.
		The Agency will use this information to help evaluate the requirements in the proposal.  The hearing, as many of you know, will be conducted in an informal manner.  Formal rules of evidence and cross-examination will not apply.  The panel may ask questions of the witnesses, and the witnesses may ask questions of the panel.  MSHA will make a transcript of the hearing available on the Agency's website within one week of the hearing.
		If you wish to present written statements of information, please clearly identify your material and give it to either the court reporter for today's hearing or a designated Agency representative at one of the designated locations.  You may submit comments following the hearing by any of the methods identified in the proposal, and as we stated earlier, that last day for submitted comments would be October 29.
		We will now begin today's hearing, and if you would please begin by clearly stating your name and organization, and if you would please spell your name for the court reporter, that will ensure an accurate record.  For you all in the locations where there's audio only, as you come to the mic, if you would state your name clearly and spell it for the reporter, but I'll go over those instructions again.
		At this point, we will begin today's hearing, and our first speaker is from our Pittsburgh location, Michael Wright with the United Steelworkers of America.  So we will now begin.
		MR. WRIGHT:  First, can you hear me?
		MS. SILVEY:  Yes, but we need to switch to our Pittsburgh location.  Please bear with us.  How are you, Mike?  We can hear you.
		MR. WRIGHT:  Okay.  Good to see you, Pat.
		MS. SILVEY:  Yes.  I can't see you unfortunately.
		MALE VOICE:  There we go.  We got it.
		MS. SILVEY:  Thank you.  Just like that.  That's technology.  I can see you now.
		MALE VOICE:  It will do it automatically, Pat.  If you put it into second, it will switch over.
		MS. SILVEY:  Okay.  Thank you.  Okay.  I can see you now.  I can hear you now, too.
		MR. WRIGHT:  Okay.  Great.  Before we begin, I sent a copy of the oral statement down for the convenience of the panel and the court reporter.  I want to make sure that the court reporter has it.
		MS. SILVEY:  Good.  Did we get it?  I want to make sure I have it.
		MR. WRIGHT:  It was faxed yesterday from CISCO.
		MS. SILVEY:  Oh, it was faxed.  It's probably here.
		MALE VOICE:  The first page did not come through clearly on your report.  The second page did, though.
		MR. WRIGHT:  Okay.  Here.  Let me get that.  We can get stuff out to Miles electronically if the last party feeds it.
		MS. SILVEY:  This is the marvels of technology.
		MR. WRIGHT:  Yes.
		MS. SILVEY:  A little sarcasm.
		MR. WRIGHT:  Okay.  Are we okay, Pat?
		MS. SILVEY:  Yes, sir.  We're okay.
		MR. WRIGHT:  Okay.
		MS. SILVEY:  Well, no.  They're making another copy.  I better give my copy to you, and then I'll wait so we can go on.  We've got a long day here.  Okay.  All right.
		MR. WRIGHT:  Do you want me to start?
		MS. SILVEY:  Yes.
		MR. WRIGHT:  Let me get to ask.  I may deviate a little bit from what I sent down, so I'd ask that my actual oral comment to be on the record and not the statement as it's written.  That was only for your convenience.
		MS. SILVEY:  Yes.  Thank you.  That's fine.
		MR. WRIGHT:  Let me start.  My name is Mike Wright.  That's spelled W-R-I-G-H-T.  I'm the Director of Health Safety and Environment for the United Steelworkers, which is a labor union representing 850,000 members in the United States, Canada and the Caribbean including a majority of organized metal and non-metal miners under MSHA's jurisdiction.
		It's polite to begin testimony by thanking the Agency.  Sadly, there's nothing in this proposal to engender any gratitude on the part of miners.  Therefore, let me thank MSHA for this new method of appearing by videoconference.  It's unfortunate we've had to have these hearings at all, but at least this method of holding them saves time and travel expense, and I'm honored to be the first speaker.  I'd be more honored if this was a proposal worthy of support.
		As you might expect, the USW is highly critical of this proposal, but I want to make it clear that our criticism does not extend to the skilled and dedicated career staff at MSHA.  We respect and admire your work on behalf of miners.  We don't think you are responsible for the proposed drug testing rules.
		Rather, we suspect it comes from the political appointees in the Department of Labor, who in the waning days of this Administration are determined to inflict their uninformed ideological view on safety and health regulation in a way that binds future administrations.  In that sense, this proposal is similar to the policy office's proposed rule on risk assessment that has garnered such comment.
		The view seems to be that despite all the evidence to the contrary, despite Sago and Crandall Canyon and all the individual lessor-known accidents that have taken so many lives, despite the continuing death toll from silicosis and black lung, it isn't hazardous conditions that are to blame.  It's drunken and drugged-out miners.  However, drugs don't cause roof falls or rock burst.  Alcohol does not cause methane explosions.  Substance abuse is not a factor in pneumoconiosis.
		Those are the issues MSHA should be pursuing, not drug testing.  I'll keep these remarks short.  We will comment much more extensively in writing later in the month.  Number one, the proposed rule is unconstitutional.  The Supreme Court has made it clear that a mandatory drug testing rule imposed by the Federal Government constitutes a search within the meaning of the Fourth Amendment.  That case is Skinner v. Railway Labor Executives' Association.
		Courts have upheld such programs only where the programs where justified by compelling governmental interest, national security or public safety, for example, Harmon v. Thornburg in the D.C. Circuit.  MSHA's proposed program fails this test.  The preamble to the proposed rule identifies no immediate or direct threat to public safety from supposed  drug or alcohol abuse in mines and certainly no threat to national security.
		The Fourth Amendment balancing of privacy against public safety applies to both random and post-accident testing.  The proposed rule does not require reasonable suspicion that the miner to be tested was impaired.  Indeed, it does not even require any prior determination that an action by the miner contributed to the accident.  Instead, it only requires that the miner be "operating a piece of equipment or performing a work activity" that causes or contributes to the accident.
		For example, if an accident was caused by defective equipment, let's say brakes on a loader, the miner operating it would be tested even if he or she did nothing improper.  In contrast, the maintenance supervisor who allowed the equipment to go into service might not be tested, and the mine operator who refused to purchase properly functioning equipment certainly would not be tested under the proposed rules.
		Two, MSHA has not shown that the proposed rule is necessary.  At past rulemakings, MSHA has refused to regulate hazards to miners absent a substantial body of evidence demonstrating that existing conditions pose a significant risk.  Yet, even where that evidence is overwhelming as in the case of silica, the Department of Labor has delayed regulation for many years.
		Yet, in this rule MSHA is relying on limited, anecdotal and sometimes irrelevant information to justify it's proposal, and we will comment much more on that in the written comments later in the month.  Between 1989 and 2007, MSHA investigated more than 1,600 fatalities.  The rulemaking record assembled by the Agency for this proposal includes only about a dozen investigation reports out of all that 1,600 over this time.
		In only five of those reports, 0.7 percent of the total, was the use of drugs or alcohol described even as a contributing factor.  In the other cited reports drugs were found at the workplace, that is the other five or six, there was no cited relationship to the factors responsible for the accident.  The experience of my own union may have some relevance here.
		In 2005, we had performed an onsite investigation of almost every fatal accident and many serious accidents in the United States.  We have, for example, done more than 60 such investigations so far this year alone.  We did almost 80 last year.  We have yet to investigate an accident that was not fully explained by workplace hazards as opposed to drugs or alcohol.  In fact, the proposed rule might even harm the cause of safety.
		A miner involved in an accident might simply say on the report either he or she fears the false positive drug test, and believe me, there are false positive drug tests, or simply wants to avoid the hassle and the humiliation of a test.  Although the evidence is anecdotal, I and others in my department know of numerous cases where workers have not reported injuries in mining and nonmining environments, not because they're on drugs, but because they object to drug testing.
		Three, there exists constitutionally permitted alternatives to the proposed rule.  MSHA already prohibits drug and alcohol use or impairment on mine property.  If MSHA wishes to increase the effectiveness of the prohibition, it can promote, even mandate, drug and alcohol education programs.  That is within the Agency's constitutional powers.  The Fourth Amendment only applies to actions by the government.
		It does not prohibit a mine operator from establishing a drug or alcohol testing policy on his or her own initiative, and many have done so.  In fact, our union has negotiated such policies in the past.  In general, we discuss this pre-employment testing and testing based on reasonable suspicion while opposing random testing.  We think that's the place to draw the balance, but I want to emphasize that that's done by an employer and the union through negotiation, not by the government.
		MSHA could publish a model drug and alcohol program so long as it did not require operators to adopt it.  However, I should say that we have not seen any positive impact on injury rates attributable to drug and alcohol testing programs, including those which allow random testing.  Finally, MSHA could deal seriously with a wider problem this proposal is intended to address, and that's impairment.
		We believe impairment is an important issue, but the most serious causes are not drugs and alcohol. In surveys, meetings and plant visits our members tell us overwhelmingly that the worse cause of impairment in their workplace, mining and otherwise, is fatigue caused by crushing levels of involuntary overtime.  Add to that the distraction that comes from being told at the last minute that you have to work an extra shift and will miss an important family function.
		Add to that the excessive and sometimes conflicting job demands that result from understaffing.  All those factors are in the control of the mine operator.  Yet, the DOL has ignored them, focusing instead on the alleged sins of miners themselves.  MSHA may claim that it does not have the authority to regulate hours of work or staffing levels.  If so, that should seek such authority from Congress.
		That would be far easier than gaining the constitutional amendment necessary to implement the drug testing requirement.  In short, we believe that this proposal is unconstitutional and unnecessary.  It's a distraction from the real work of safety, and it should be withdrawn.  As I said, we'll be submitting more formal comments in the future by the end of the month, but I'd be happy to answer questions now.
		MS. SILVEY:  Thank you, Mike.  I really don't have any questions of you.  There was one part of you to ask we will look forward to and appreciate receiving your more in-depth comments.  I did want to, for everybody to hear this, just underscore with respect to your statement on page 2, and you brought out in talking about the constitutionality of the rule that the rules does not require any prior determination that an action by the miner contributed to the accident.
		I can't go and find the specific provision now, but if I'm not mistaken, the rule does say that it has to be after an accident, a finding that drugs or alcohol may have contributed.  Now, it might say "may have contributed to an accident," but there has to be some finding if I'm not mistaken.
		MS. CARR:  That is left to the mine operator's determination.
		MS. SILVEY:  Let me see.
		MR. WRIGHT:  I believe the right text itself says that the miner has to be operating a piece of equipment or performing a work activity that contributes, and the point I was trying to make is that a miner might be operating a piece of equipment that does contribute, for example, defective brakes on a loader.
		MS. SILVEY:  Yes.
		MR. WRIGHT:  But the miner may not be responsible for those defective brakes if the gear shift would be tested.
		MS. SILVEY:  No.  Yes, I understand that.  I clearly understand that, so we'll look at that, yes.
		MR. WRIGHT:  Whereas the mine operator who may have been the person really responsible for the defective equipment would not be tested.
		MS. SILVEY:  Okay.  Yes.  Okay.  Well, no, I don't have any further comments or questions myself.  I bow to them.  Do you all have anything?
		Thank you very much.  And as I said, we'll look forward to your more in-depth comments before the comment period closes.
		MR. WRIGHT:  Thank you.
		MS. SILVEY:  Okay.  Thank you.  Next, we will have Bruce Watzman with the National Mining Association from the D.C. location and a panel of witnesses, so as I explained earlier, if the person who is speaking can sit in the second chair from the end, and then just switch off as different people speak, we would appreciate it.
		MR. WATZMAN:  Thank you. Pat.  Good morning.  I have copies of our complete submittal, which I will give to you for your review later, and I've already provided a copy to the court reporter.  My name is Bruce Watzman, W-A-T-Z-M-A-N, and I'm with the National Mining Association.  On behalf of NMA, we thank you for providing us the opportunity to appear before you today to present the views of NMA's members on the proposed rule for alcohol and drug-free mines.
		Joining me today representing NMA are Helen Blevins with CONSOL Energy and Jennifer Herner with Arch Coal.  We applaud MSHA for publishing the proposed rule for alcohol and drug-free mines.  This is an area that has been and remains a great concern to our members, and I'm pleased that NMA has been at the forefront of advocating the need for a federal regulation to eliminate the gaps that exist across the patchwork of state programs regulating substance abuse at our nation's mines.
		Having taken the important step of recognizing the existence of a problem in mine safety, we're disappointed with MSHA's proposed solution.  In fact, we've concluded that adoption of the proposed rule as published will actually diminish the level of workplace safety provided by NMA member company programs already in effect.  As such, we cannot support the proposal as published.
		Absent major modification, we believe the rule should not be finalized.  Let me briefly touch upon the elements of the proposed rule that are central to our concern before turning to my colleagues.  First, the proposed rule relies upon, in fact incorporates the DOT testing program contained in 40 C.F.R. Part 49 and C.F.R. Part 40.
		While this seems sensible given the DOT's long history of regulating alcohol and drug testing for the transportation sector, the wholesale adoption of DOT's program will, if finalized as proposed, result in many mine operators having to curtail their current comprehensive testing regimes and employ the DOT program.  More importantly however, adoption of the DOT program for MSHA purposes overlooks the documented shortcomings of the DOT program.
		Last year, less than a year ago in fact, the General Accountability Office issued a report examining the DOT program.  They issued a report entitled Undercover Test Reveal Significant Vulnerabilities in DOT's Drug-testing Program.  Stunningly, GAO concluded, "DOT's testing program is vulnerable to manipulation by drug users, especially given the wide ability of products designed to defeat drug tests."
		While several factors were identified, we believe DOT's reliance upon urine samples for testing is a major flaw that would be repeated in the MSHA program as proposed.  Today, most companies have advanced well beyond the DOT testing protocols and include blood and hair sample testing, which have been proven to be more reliable for identifying long-term substance abusers.  Some also use instant result tests, which ensure that no one with drugs in their system is put back to work.
		The proposed rule would eliminate the ability for mining companies to use these advance testing tools and thus would diminish the level of workplace safety already provided.  A second issue which the proposed rule fails to address because of its reliance upon the DOT program is the ability of individuals to hop from employer to employer after having failed a test.
		Once again, the GAO in June of last year issued a report to the Chairman of the Committee on Transportation and Infrastructure of the U.S. House of Representatives entitled Examples of Job hopping by Commercial Drivers after Failing Drug Tests.  This report identified numerous cases of individuals obtaining employment after having tested positive for prohibited substances in a test administered by a prior employer.
		This situation would not be remedied by the proposed rule, and I would ask that both of these reports be made a part of the office hearing record.  To address the latter situation, the states of Kentucky and Virginia, which were prominently and appropriately recognized in the preamble to the proposed rule, share the names of miners whose certification has been revoked by either of the states.
		I would note that between July '06 and October of '08, 633 certifications have been revoked due to failure to pass a substance abuse test.  While many of these are in various states of appeal, only five individuals have been recertified for employment today.  Unfortunately, there is no federal certification process for miners and employers in states that do not have comparable programs and do not have access to this data have become the proverbial home for wayward souls.
		In the absence of a federal certification process, mine operators must be provided with the authority to use the full suite of diagnostic tools currently available.  Mine operators must have the ability to conduct testing that will identify those who have temporarily come clean merely to pass a pre-employment test.  Limiting testing to only the methods recognized under the DOT program will deprive mine operators of this ability, and it's not the solution.
		Lastly, and most importantly, we believe that by denying mine operators the ability to exercise all disciplinary actions for a first offense of the operator's program, up to and including dismissing the employee, the proposed rule will diminish rather than enhance the current level of workplace safety provided by NMA's members.
		While we believe the industry would be served by a federal regulation providing authority and direction for all operators to govern their substance abuse program, we cannot support a regulation that will reduce the protections currently provided in the absence of a federal regulation.  Unfortunately, we find the proposal is written to be more protective of substance abusers than miners.  This is something no one in the industry should tolerate.
		Now let me turn to my two colleagues who have far more experience in this arena than do I.  Our first speaker will be Helen Blevins with CONSOL Energy.  Helen is the Manager of Clinical Occupational and Non-Occupational Healthcare for CONSOL.  She has extensive experience managing CONSOL's substance abuse program and is recognized as one of the most knowledgeable authorities on the problem of substance abuse in the mining industry.
		Following Helen will be Jennifer Herner with Arch Coal.  Jennifer is Arch's Assistant General Counsel responsible for litigation and employment matters.  She's been intimately involved in the development of Arch's substance abuse program, particularly the interplay between the various statutes protecting employee rights.
		MS. BLEVINS:  Members of the panel, my name is Helen Blevins.  That's spelled B-L-E-V-I-N-S.  I'm the Manager of Clinical Occupational and Non-Occupational Healthcare for CONSOL Energy.  I'm here today on behalf of the National Mining Association to address the importance of drug and alcohol testing in the mining industry and how it can impact the safety and health of those who work in mining.
		I would like to start by thanking you for your continuous attention on evaluating areas which will improve not only safety, but the health of miners.  As stated in the proposed rule, use of drugs or alcohol can severely impact an individual's judgment and put coworkers and equipment at risk.  Mining is inherently dangerous, and the use or misuse of alcohol and drugs increases the risks of accident, injury or death.
		It is reasonable to suspect that any decrease of a miner's attentiveness, concentration, dexterity, balance or reaction time could play a contributing if not causative role in an accident.  No one can dispute that a miner who is under the influence of alcohol and/or drugs is an acceptable situation.  It can cause risk for accidents.
		I have worked in the mining industry for 29 years in various healthcare positions.  During this timeframe, I have been involved in the implementation of the DOT drug and alcohol testing program as well as the non-DOT drug and alcohol testing programs for CONSOL Energy.  I had the opportunity to serve on Kentucky's Mine Substance Abuse Task Force.  House Bill 572 was signed into law and became effective
July 12, 2006.
		This law incorporated the recommendations of the Mine Substance Abuse Task Force comprised of 15 representatives from the coal industry, labor, MSHA, the states of Kentucky, West Virginia, the Kentucky Department of Insurance and the Kentucky Office of Drug Control Policy.  We met in numerous day-long sessions from March to November of 2005 and produced the Mine Substance Abuse Task Force Report in December of 2005.
		This law became the foundation that sets standards on substance abuse to the mining industry.  In 2007, Kentucky marked the lowest number of mining fatalities in their history, and this law is credited for causing that improvement.  As we all know, Virginia followed and passed a law in April 2007 requiring mine operators to implement a substance abuse screening policy and program for all miners in their state.
		We again commend these two states for their guidance.  We believe one reason why their law has made an impact is because they had the foresight to see that if they made the law so stringent it would prevent them from making future decisions when allowing changes as they arrive.  Here are areas which became challenging for corporation to implement drug and alcohol testing programs since 49 C.F.R. Part 40.
		These are questions, which need to be addressed with 30 C.F.R. Part 66 proposed rules.  When 49 C.F.R. Part 40 was adopted, it addressed the issues for that time.  As we can see today, the use and abuse of different drugs, and the methods available to test have changed.  In the 1980s, it was hard to see the challenges we would have today such as adulterants as well as synthetic and semi-synthetic drugs.
		When the regulation was passed, medical review officers did not have as many issues as they do today with verifications for prescribed medications.  Today, industry is focused on education and prevention and holds all employees accountable to work safety.  I do want to point out that 49 C.F.R. Part 40 does give employers the ability to follow standards that are excellent.  These areas of excellence are collections,  procedures, drug testing laboratory requirements, recordkeeping and medical information process.
		The proposed rule today also addresses these standards.  Substance abuse is an animal which is a very hard thing to place your arms around.  We have seen with 49 C.F.R. Part 40 that the regulations need to have larger arms today to address the areas that prevent safety from being placed first.  Many employers have developed their method for testing based on their geographic need.
		In other words, if the closest clinic or hospital is 60 miles from their location, they need the ability to use a rapid test for drugs and a rapid saliva test for alcohol.  As long as the methodology has been approved by the FDA, and the employer has the ability to have confirmation testing completed, we should place regulation mandating this as well.
		The members of the National Mining Association believe the regulation should cover all employees working on the operator's mine property.  Many employers become overwhelmed with who should be covered and who is not covered with this type of language.  Health and safety should be all employees on mine property responsibility.  Therefore, everyone should be covered under this proposed rule.
		Another concern employers have is prescription medication use and abuse.  Our concern is that certain prescription medications can also affect one's ability to perform a job safely.  Employers also feel that physicians need to be educated on the inherent dangers of certain prescribed medication and the consequences that medication can have on their patients and in our industry.
		They should also understand that it is their responsibility to keep their patients safe when prescribing certain medications.  If a mine operator has the need to investigate the use of an employee's prescribed drugs, the prescribing physician must certify that the prescribed usage of the prohibited substance is appropriate for use by the employee to work safely while performing their essential job functions on mine property.
		Many employers can show that since they have implemented a drug and alcohol program they have had a reduction in accidents as well as absenteeism.  I noted earlier that Kentucky has published data showing that in 2007 they had the lowest number of non-fatalities since the implementation of drug and alcohol testing.  Many employers often feel that zero tolerance is the only way to keep their workforce safe.
		Employers recognize that if an employee does not come forward for help before being faced with a disciplinary action, the employer wants the ability to follow their policy for discipline.  The reason is they don't want to place others in harm's way by giving a second chance.  Many employers have implemented and educated their workers on their employee assistance programs.
		They feel that if an employee is mandated into a program, the program is not as successful, and the employee has a greater chance for relapse.  Employers have stated once the drug and alcohol program has been implemented, they see an increase in employee rehab participation, which shows more successful outcomes.
		In closing, I would like to ask the question is it necessary that this proposed rule incorporate regulations which prevent employers from developing or having a more stringent company policy, which would ensure a safe and healthy work environment?  No, it is not necessary.  The National Mining Association feels employers should be permitted to go beyond what the proposed rule states.
		If a company has or wants to develop and implement a more stringent company policy, this can only help to better ensure a safer workplace for our employees.  Members of the panel, thank you for the opportunity for allowing me to give my comments on this very, very important rule.
		MS. SILVEY:  I have a few comments, but we'll do it at the end.
		MR. WATZMAN:  Okay.
		MS. HERNER:  Members of the panel, good morning.  My name is Jenny Herner.  That's spelled
H-E-R-N-E-R.  I'm Assistant General Counsel of Arch Coal, which is headquartered in St. Louis, Missouri.  I'm appearing here today on behalf of the National Mining Association to testify on the important role drug and alcohol testing has in maintaining safety and health conditions in the nation's mines.
		Thank you for your continued interest in improving miner's safety and health and for the opportunity to present the mining industry's views on the proposed rule.  As indicated in the introduction to the proposed rule, 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 clear focus on the work at hand is a crucial component of mine safety.  Miners under the influence of alcohol and/or prohibitive drugs endanger themselves as well their co-workers.  This is of particular concern because many fatal and non-fatal mining accidents involve the operation of some type of equipment, tool or machinery.
		Sharing this concern, the majority of larger mining companies have had drug and alcohol testing programs in place for some time, and we wholeheartedly support MSHA's effort to require all mining companies to implement such programs.  Our top priority is to ensure that every miner return home safely every day.
		We have some suggestions on the proposed rulemaking based on our collective experience with these programs, which we believe will strengthen the rule's ability to improve safety in our nation's mines.  In general, many of us have drug testing policies that are more stringent than the proposed rule, including zero tolerance policies or at least the option to terminate for a violation.  We strongly suggest that the proposed rules be modified to act as minimum standards only.
		We also took the liberty of suggesting specific changes to the language of the rules, which I will discuss briefly and which we will submit with our testimony.  In terms of applicability, the rules restrict testing to a narrowly defined group of employees that MSHA has determined perform safety-sensitive job duties.  However, we believe that all of our mine employees' duties are safety sensitive.
		To quote John Donne, "No man is an island entire of itself.  Every man is a piece of the continent, a part of the main."  At coal mines, even office clerks have to drive onto mine property around large moving equipment and other dangerous areas on the way to and from work.  Almost every office and warehouse position involves some kind of travel into the active mine sites.
		Our general managers are at active mining areas daily as part of their jobs as are human resources manager, safety managers and other office worker.  We all have a role in safety from those who take comprehensive miner training to those who keep and file the record of that training to the presidents of our respective companies.  We all have a role, and for that reason, we are concerned that the definition of persons performing safety-sensitive job duties is too narrow.
		If it is left as it is and a mine operator terminates someone for testing positive who does not fall within the proposed rule's definition, we risk liability for wrongful discharge based on laws that restrict drug testing to those in safety-sensitive positions.  This is a safety issue for us.  In terms of training, we wholeheartedly support the requirement of training.  Arch's subsidiary operations have training for their miners.
		Some also have training for the miner's families.  Some have creative videos to supplement their one-on-one training.  We think that training is very important.  However, we think the requirements on the amount of time spent on training and where and how to distribute it are form over substance, particularly if we use MSHA's nice suggested training in our program.  Again, this should be a minimum standard.
		With respect to testing, the proposed rules and the incorporated the DOT regulations appear to contemplate only urine testing for drugs and breath testing for alcohol, including blood, saliva and hair testing, which also should be permitted.  We found hair tests to be effective in eliminating illegal drug users from the pool job applicants since hair samples reveal drug use over a longer period of time.
		Hair and other tests also are useful when miners are unable to produce the urine samples during testing.  With respect to the tests themselves, some mine operators use immediate results drug testing kits, which, as the name suggests, allows them to test and receive initial results on the spot ensuring the miners who have illegal drugs in their system are not put back to work.
		However, the incorporated DOT regulations do not permit this type of testing, requiring that all samples be tested offsite in a certified lab.  In addition, there are conflicts between the DOT regs and the proposed rulemaking.  For example, the proposed rules indicate that an operator may suspend employees pending for-suspicion and post-accident testing, but the DOT regs prohibit employers from suspending employees pending receipt of verified results.
		We also think the extensive DOT regulations will be harder for smaller mine operators to comply with.  Therefore, we suggest eliminating the requirement to follow DOT procedures.  Mine operators should not have to abandon existing successful drug testing programs simply because they do not follow the DOT scheme.  Requiring the use of SAMHSA certified labs for confirmation testing of positive results should address any concerns regarding testing procedures.
		Finally, because mine operators would be relying on approved labs for a confirmation test, and because this rule is drafted as a mandatory safety standard, we suggest adding a provision that mine operators will not be liable for taking action based on the type of specimen used or invalid test results. With respect to reasonable suspicion testing, the definition of reasonable suspicion should include instances in which mine operators are informed of employee use.
		I'm aware of at least one instance in which a spouse informed a mine operator of her husband's use, presumably out of fear that he would be hurt or would hurt others in the workplace.  I'm also aware of co-workers reporting drug use out of fear for their own safety.  We should be allowed to test employees under such circumstances, even if they aren't exhibiting signs of drug use.  For this reason, we suggest removing the requirement in $66.203 that there be evidence of reasonable suspicion testing.
		If there's any reasonable suspicion, we should be able to test without being concerned about whether there is sufficient evidence to support it.  A minimum standards rule would address this concern.  Regarding random testing, it was unclear in what timeframe the 10 percent quota applied, so in our proposed revisions to the rules, we've suggested that at a bare minimum this be a yearly quota, although many of us have much more aggressive testing in place.
		Regarding post-accident testing, although any root cause investigation should explore whether worker impairment played a role in causing an accident, mine operators sometimes find it difficult to obtain this information, especially in fatality cases where the victim's family may block such a test.  Therefore, mine operators should not be penalized if they're unable to obtain this information.
		With respect to procedures after testing, since the MRO is the one requesting and receiving prescription drug information after positive results, we don't think it makes sense for mine operators to ensure that employees have the opportunity to provide this information.  Rather, we think the MRO should do that.
		We also suggest clarifying that mine operators have the right to do a direct threat analysis under the Americans with Disabilities Act, or ADA, for lawfully prescribed medications of which they become aware when they believe those medications may impair a miner's ability to work safely.  For any of you not familiar with this procedure, an employer may exclude someone from a position if it determines that he or she would pose a direct threat.
		In other words, a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.  To determine this, employers consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur and the imminence of the potential harm.
		The determination that someone poses a direct threat under the ADA is based on an individualized assessment of the employee's current ability to safely perform their essential job functions considering available objective evidence.
		As it is written, the proposed rules could be read to prohibit mine operators from taking action and requiring a statement even if considering reasoned medical judgment it determines that a miner's lawful prescription drug use poses a direct threat to the miners or his or her co-workers' health or safety.  This despite MSHA's recognition in the introduction that even prescription medications may affect a miner's perception and reaction time.
		Again, it's our hope to have a minimum standard that allows us to take all steps necessary to keep our mines safe.  Regarding the amnesty provision, which many of us already have in place, $66.204 could be read to allow miners to seek assistance after being identified for testing.  This should be clarified.  Also, the amnesty provisions should have a limit on use to prevent abuse, namely once.
		Regarding the mandatory referral to Employee Assistance Programs, or EAP, while this is fine for someone who takes advantage of the amnesty program, again we think it should be in the mine operator's discretion to send someone who violates its policy to an EAP rather than terminating their employment.  Furthermore, there's no consideration of the fact that casual drug users are in need of assistance.
		Referring them to an EAP puts them in a protected class under the ADA as having a record of alcohol or drug addiction.  There already is an amnesty provision, and eligible employees who take leave for drug and alcohol rehab are protected under the Family and Medical Leave Act, so we think this provision is unnecessary.  In addition, a mandatory EAP referral may be burdensome to smaller mine operators that currently do not have EAPs.
		With respect to the requirement to test an employee who returns from rehabilitation six times within 12 months of their return, we don't necessarily object to a minimum testing for those who return to work after taking advantage of an amnesty program, but we are curious as to how MSHA selected this number.  Lastly, and most importantly, mine operators were very concerned over the requirement to put first-time policy violators back to work.
		Many mine operators have zero tolerance policies or exercise discretion to terminate based on circumstances such as the substance use and the level of drugs in the employee's system.  They consider this requirement to be a step backwards in safety for them and an improper intrusion into the day-to-day management.  It diminishes the at-will doctrine.
		Miners already have the ADA to protect them from abuses in this regard, although even the ADA doesn't protect those who engage in casual drug use or who currently are using illegal drugs, and respectfully, neither should MSHA.  If I were arrested for driving drunk on the way home from this hearing, my driver's license would be revoked because I abused the privilege to drive and put other drivers in danger.
		Why then are miners who are driving 240-ton trucks allowed to return to work and put their co-worker in danger?  As written, even those who are actively attempting to conceal a drug use by purchasing and using adulterants, those who have illegal drugs on mine property and even those who are dealing drugs on mine property must be put back to work.
		Mine operators should be given discretion to terminate for a first offence and at the bare minimum should be allowed to terminate those adulterate their samples, have illegal drugs on mine properly or are dealing drugs.  As it is, this mandatory second-chance provision arguably conflicts with the Safe Explosives Act, which provides that no one may receive or possess explosives who is an unlawful user or addicted to any controlled substance.
		Mine operators who are federal contractors also risk debarment under the Drug-Free Workplace Requirements for Federal Contractors if the number of employees who have been convicted of violations of criminal drug statutes is accepted.  The second chance provision also conflicts with some state laws.
		As recognized in the introduction to the proposed rules, miners in Kentucky who test positive for illegal drugs lose their certification, although they can reapply, which we think is appropriate in the majority of the circumstances.  While the proposed ruling suggests putting offenders in non-safety sensitive positions, many mine operators are thinly staffed, and as we said consider all their positions to be safety sensitive.
		Finally, if the mandatory second chance provision is not struck, the proposed rule puts the burden on mine operators to decide whether to return offending miners to safety-sensitive duties.  Combined with the requirement to return them to work, this exposes mine operators to liability for negligently returning someone to a safety-sensitive position.  We should not be asked to face liability for putting safety first.
		Again, in conclusion, we wholly support MSHA's effort to require all mine operators to implement drug and alcohol testing.  None of us, neither the mine operators nor I'm sure MSHA will be satisfied until every miner returns hole safely every day.
		We respectfully suggest that our proposed changes to the rules, and in particular the elimination of the mandatory return to work provision will further that goal by allowing those with successful drug and alcohol testing programs to continue those programs and by providing minimum requirements for those who do not.
		Members of the panel, once again on behalf of the members of the National Mining Association, thank you for the opportunity to give our perspective on this vital public policy.  If you or the other members of the panel require any additional information, please don't hesitate to contact us.
		MS. SILVEY:  I have a few comments and questions.  Just bear with me a minute.  And I don't know what order these comments are.  They may be for sort of like any of you or all of you.
		First of all, I see a common thread coming from, and obviously I'm sure you all knew that.  I looked at some of the comments before today's hearing, and one of the common threads that I saw through it was, I don't know how exactly you word it, but having the option I guess I should put it of getting rid of a miner at the first offense, however you want to word that so everybody can understand what I'm saying.
		I had a question that I wanted to ask.  You know, they say never ask a yes or a no question, so I'm going to see if I can rephrase it.  What do you view the role of a rehabilitation program to be?  I was going to say you can either talk of it from an overall conceptual standpoint or from the quantum view of your company.
		MS. BLEVINS:  I'd like to address both sides, a small employer and a large employer if that's okay looking at a rehab program and how you would be able to offer it and what you would be able to have as outcome.  Is that what you're looking for?
		MS. SILVEY:  Well, I guess what I'm
actually -- because it seems to me that that's where a little bit of the crux of it, of this proposal is in terms of opposition to the proposal requiring that the miner be referred to a substance abuse professional and/or a -- help me with the terminology.
		FEMALE VOICE:  EAP.
		MS. SILVEY:  Employee Assistance Program.  And I'm asking you especially I guess you're right being a health professional, what do you see as the role of a rehabilitation or Employee Assistance Program in an overall substance abuse program, but when you say you would like to respond to that from a standpoint of a small employer or a large employer, but I assume yours is a large company though?
		MS. BLEVINS:  It is.  Correct.
		MS. SILVEY:  Okay.  Okay.
		MS. BLEVINS:  But as I presented earlier, I was on the Kentucky Task Force, so I have some ability to be able to understand both large and small employers' positions.
		But to answer I believe your question, Patricia, is the role of an EAP.  The role of an EAP is to allow a work/life balance for an employee through an Employee Assistance Program by the employer.  What that means is that an employee could go forth on their own since they've had the training through regular training, annual refresher, that an EAP is available or that a number of different EAPs may be available for that employee to get in touch with.
		If they in fact have a substance abuse problem, they're able to contact that EAP for assistance.  What that means is a lot of times an employee has reasons to contact an EAP, but they really don't know the full roots.  They know there may be a shoot, but they don't know the whole reason behind it.
		Therefore, the EAP has professional counselors that can give that employee guidance on what they need to do next, meaning a person may have work or family issues that are contributing to.  The goal for an EAP is to identify things early and to prevent a situation before it goes to the extreme, such as somebody who needs detox.
		However, if an employee realizes that they truly do have a substance problem, they recognize that they need further medical treatment such as detox, before they can go into the rehab process, the EAP is able to give them guidance and outline that for them.
		As an employee goes through the process with an EAP, they're then able to get the treatment, the ongoing counseling and be able to be placed in programs that will allow greater success for sobriety.  Now to answer EAPs from a large or small company's perspective, many large employers already have EAP programs in existence, and we do train our employees, and some of us actually go so far as offering the EAP family members as well because the theory there is we want to keep our employees safe.
		If they have a family member who has an addiction, that person's mind isn't on the job either at work, so we expand it to offer it to all employees and their dependents, okay?  With that being said, it can be very costly.  Some rehab programs which are the most successful will offer not only a detox program but also an inpatient or extensive outpatient program.  Those programs typically will last anywhere from 28 to 30 days or longer.
		In saying that, take, for example, the cost of a 28-day inpatient stay.  It could be anywhere from $12,000 to $14,000 for that process.  Along with that, a lot of large companies not only provide full payment for that program, but they also allow the employee to be eligible for short-term disability.  So we are trying to ensure that our employees receive the proper care, receive the ongoing care after a program to be able to come back to a productive life in our industry because we do value our employees.
		Smaller companies, a lot of them can't afford that expense, but what they will do is they will publish names for resources for people to get in touch with and they will hold their positions.  So you need to look at that balance, and I'm hoping I'm answering your question on what an EAP is truly there for.  A true EAP is to help recognize prevention early for an employee, and then if the process unfolds and they need more extensive, they can also receive the more extensive care.
		MS. SILVEY:  And so I guess then now that you've given -- I appreciate you giving me that full and thorough explanation, and I don't want to put words in your mouth, but within the context of your testimony, and I am going to sort of put words in your mouth, I take it that you do see value in an EAP program?
		MS. BLEVINS:  Absolutely.
		MS. SILVEY:  Okay.  That's my question.  Okay.  With respect to your testimony on persons performing safety-sensitive jobs, and you thought the proposed definition was too narrow, and I could be talking to any one of the three of you quite honestly, that it should cover everybody, and now I'm going to ask something specifically with respect to the program that you have now.  I assume that your existing program covers every employee when they come through the mine gate?
		MS. BLEVINS:  And I can speak for CONSOL right now with the exception of West Virginia, because we do have to follow the guidelines applied to safety-sensitive there.
		MS. SILVEY:  Okay.
		MS. BLEVINS:  Our other locations, yes, we do have a program in place that will test all employees.
		MS. SILVEY:  And with West Virginia, what's the West Virginia state law now?
		MS. BLEVINS:  And I'll defer that to Jennifer.
		MS. SILVEY:  Yes.
		MS. HERNER:  In West Virginia, you're only allowed to --
		MS. SILVEY:  Excuse me.  If you would give your --
		MS. HERNER:  No, that's all right.
		MS. SILVEY:  And I'm messing the court reporter up.  Yes.  It just hit me if everybody would give their name when they're talking.  Right.  Speak into the mic and give your name, yes.
		MS. HERNER:  Yes, ma'am.  Jenny Herner,
H-E-R-N-E-R.
		MS. SILVEY:  Yes.
		MS. HERNER:  And the question was the state law in West Virginia.
		MS. SILVEY:  Yes.
		MS. HERNER:  Prohibits employers from testing -- and this is common law, this is not statutory --
		MS. SILVEY:  Okay.
		MS. HERNER:  -- from testing employees who are not in safety-sensitive positions.
		MS. SILVEY:  Okay.  Theirs is tied to safety-sensitive.  And now I'm going to ask you, the lawyer, one other thing.  Do you know how they define safety-sensitive positions?
		MS. HERNER:  It's very broadly defined in the case law.
		MS. SILVEY:  It's very broadly defined in the case law.  Okay.  All right.  Thank you.
		Let's see.  I had some more questions here.  When you -- I'm looking at Ms. Blevins now -- when you gave in your testimony that you have been involved in implementation of DOT drug and alcohol testing as well as non-DOT for CONSOL, so I suppose the non-DOT testing programs are the ones that go to the hair samples?  Well, that's the analysis part I guess, right?
		MS. HERNER:  Corporations typically define non-DOT as their own policy rather than where a DOT is obviously following strictly the DOT regulations.
		MS. SILVEY:  Okay.  The DOT.  Right.
		MS. HERNER:  And our company does have both because we do have DOT, which takes a Coast Guard/Highway pipeline as well.
		MS. SILVEY:  Okay.  Let's see.  Well, with respect to your comment that you support the proposal, and obviously I realize all the areas in which you don't support it, and I'll tell you the truth, and for everybody else who's listening too, if you wanted to do this, of course I don't have to since Mr. Wright is looking on now, I don't even have to ask him that, but for some people, the fact that people gave alternative suggested regulatory language.  I know what his alternative suggested regulatory language would be, so I wouldn't ask him that.
		But one of the things in terms of your suggested language, in terms of -- and I guess the initials go to you, Bruce -- in terms of the companies that have, not necessarily for you to answer right now, that have programs in place, do you have -- and they might not want to give them to us anyway -- do the companies have data which show that their programs have impacted safety and health privatism?
		MR. WATZMAN:  Pat, if they have the information, it's not something that we've solicited from them, nor has it been shared.  I know you've asked those questions in the preamble to accompany the proposal.
		MS. SILVEY:  Yes.
		MR. WATZMAN:  And companies will individually decide the degree to which they want to make that information public.
		MS. SILVEY:  Yes.
		MR. WATZMAN:  Because it is public as soon as it's provided to you, and that may cause a concern for individual companies.
		MS. SILVEY:  Did you all have anything?  You all can see this is not -- let's go off the record now.
		(Whereupon, a short recess was taken.)
		MS. SILVEY:  Excuse me.  I guess we did have one more comment.  It seems like I think we probably could have a lot, but this goes to Ms. Blevins too.  Your comment that says -- I guess this was -- the statement in your testimony, "If a mine operator has the need to investigate the use of employees' prescribed drugs, the prescribing physician must certify that the prescribed usage of the prohibited substance is appropriate for use by employee to work safely while performing their essential mine functions on job property", is this what you all require in your program?
		MS. BLEVINS:  What we will do is --
		MS. SILVEY:  And how do you do that?
		MS. BLEVINS:  Right.  What we will do is, and actually Jennifer could explain the ADA side of it much better than I, but what we will be able to do is if a medical review officer feels that the employee has a negative screen, however, that they are on medication which of course we do not know what it is, we will have the employee, the medical review officer as well as our company, will go to the employee, ask them to sign a medical release in order for us to understand from their treating physician as well as define to the treating physician the essential job functions for that person so that that treating physician truly understands what the employee has to do on the job as well as take a look at the types of side effects possibly that could prevent an employee from having total ability to have dexterity or awareness, attentiveness involved.
		MS. SILVEY:  So the prescribing physician does that.
		MS. BLEVINS:  Yes.
		MS. SILVEY:  Not the medical review officer.
		MS. BLEVINS:  It actually comes back to, and Jennifer, you may want to also explain a little bit better about the ADA.
		MS. HERNER:  I will if I may.  Director, simply what we proposed in our redraft of this section is a procedure that we think complies with the provisions of the ADA with respect to direct threat analyses.  And what we proposed is that the MRO once it learns that there is a negative screen but there is a prescription that falls within that list of prohibited substances is the MRO would then advise the employer that further inquiry needs to be made to the physician, again without identifying their particular prescription because the employer doesn't need to know that information it doesn't want to know.
		But then the employer would go to the prescribing physician with a questionnaire that asks questions, for example, does this medication for this employee in the amounts prescribed affect their coordination, balance, concentration and so forth.  We would provide a copy of the job description for that individual employee as well as any functional capacity analyses.  And then we receive the completed questionnaire back and we make a decision based on that, based on the responses received from the treating physician whether that employee is safe to perform his or her job functions.
		MS. SILVEY:  Okay.
		MS. CARR:  Just a clarification.  I appreciate the recommendations and the concern about determining whether or not legitimately prescribed drugs might also be impairing.  Is your analysis such that you do not currently feel that the proposal allows for that type of individualized assessment because there is language that suggests that there is the prerogative of the MRO to notify the employer?
		MS. HERNER:  We did read it as prohibiting that, so to the extent that it is allowed and you are in favor of that, we would suggest clarifying what rights mine operators have.
		MS. SILVEY:  Okay.  Anybody --
		(Whereupon, a short recess was taken.)
		MS. SILVEY:  We are about ready to start, `and as I said, our next speaker is from our Denver/Englewood office.  Mike, we're going to see you all later.  It's taking a little while later for the screen to come up.
		(Discussion held off the record.)
		MS. SILVEY:  So our next speaker, we have Tim McCreary with Thunder Basin Coal Company, and I gather that you may or may not have somebody with you, so please --
		MR. MCCREARY:  I am by myself.
		MS. SILVEY:  Okay.
		MR. MCCREARY:  McCreary is M-C-C-R-E-A-R-Y.  I'm the Safety Manager at Thunder Basin Coal Company in Wright, Wyoming.  I want to thank you for the opportunity to address the panel concerning Thunder Basin's views on the proposed rules regarding drug and alcohol testing in mining.
		Thunder Basin has had a drug and alcohol testing program since 1985.  The program has evolved over this 32-year period with changes in technology and successes and failures within the program.  We believe through this evolution we now have a very successful deterrent for the use of drugs and alcohol in our mining operation.
		Safety is a core value at Thunder Basin Coal Company.  We view the regulation as written as a step backwards in our efforts to maintain a drug and alcohol free workplace.  Mine operators must be given the flexibility to administer these tests with the best technology available and have the ability to determine the consequences according to those results.
		The regulation mentions in many instances that the testing for drugs will be conducted through urine sampling.  We generally use urine sampling methods when conducting random sampling.  However, we use hair follicle testing in most cases when conducting preemployment testing.  This gives us the ability to look further into the past for any drug use.  There may be situations that arise where a blood test may be the best testing method of choice for those specific circumstances.  Mine operators need the flexibility to conduct the appropriate test for the situation at hand.
		Operators should also be permitted to test all work positions at the mine as they so desire.  Personnel in non-sensitive, safety-sensitive positions at the mine may have influence on safety-sensitive position miners.
		The regulation allows a miner to voluntarily admit any inappropriate use of drugs or alcohol prior to testing.  As written, miners may never be in violation of the policy so long as they confess their inappropriate use each time prior to the test.  Our policy does not excuse a person who self-identifies once they have been selected for testing.
		The proposed regulation is also unclear as to the length of time for the 10 percent quota.  We suggest that a one-year period be used, although Thunder Basin tests approximately 50 to 60 percent of our employees each year.  The 10 percent per year at a minimum might be a more workable number for those contractors and mine operators who will be implementing new programs.
		As far as reasonable suspicion testing, mine operators must be allowed to test based on specific information given to them by a miner's coworkers.  And in most cases, miners and their coworkers spend much more time together during the shift than supervisors and employees do.  Coworkers are an important link in the information chain and should not be removed from the equation.
		Supervisors or other company officials' observations should not be the only method in identifying drug or alcohol use.  Oftentimes, impaired miners have the ability to straighten up in the presence of a supervisor.  Miners are much more likely to let down their guard if you will around their coworkers.
		And in consequences for miners for failing or refusing to test, mine operators must have the ability to terminate employees for first-time offenses.  We should also have the flexibility to terminate an employee who refuses to participate in the testing process.  Most drug and alcohol programs look upon a refusal the same as a positive test, and adulteration is the ultimate form of defiance and should be considered the same as falsification of a company document and result in immediate discharge.
		In summary, Thunder Basin Coal Company's current policy has been in place since 2002.  In that time period, we have had 99.72 percent of our tests show no drug or alcohol use.  This demonstrates that our policies and practices have worked well at establishing and maintaining a drug and alcohol free workplace.
		Members of the panel, please give the mine operators the flexibility to use multiple testing methods, allow us to continue to deal effectively with first-time offenders through termination.  These steps are necessary for this industry to get to zero injury.  Thank you.
		MS. SILVEY:  Thank you, Mr. McCreary.  I basically just have two comments, one question.  I wrote down -- oh, yes.  Now there's so much going on.  Under your program, the one that you have in place now, who do you test in terms of who's covered?
		MR. MCCREARY:  Everyone at the mine.  All employees are.
		MS. SILVEY:  All employees.  Okay.
		MR. MCCREARY:  All employees.
		MS. SILVEY:  That's a simple answer.  The second one, let me see if I can say something to --
		(Pause.)
		MS. SILVEY:  Okay.  I think I'm right now here.  You know what they say, think you are.  Under the proposal, and I just want to make sure there's no confusion, you talked in your testimony and I was trying to write down that people who confess to inappropriate use, they could do that each time prior to the test and they could sort of get away, get a free pass.  You seemed to intimate that.  But under the proposal, while the agency meant to encourage people to voluntarily, you know, come forward if there is an issue, it by no means meant to excuse inappropriate use.
		So while the first time would be, you know, the person would be referred to treatment if the person voluntarily admitted use, under the proposal, the second, the third, the fourth, the fifth, which seems to me I got that from your testimony, the operator could do what the operator wanted to do under the proposal, so it was not meant to do anything but to encourage it as a first time, so I just want to clarify that.  And I thought that was clear in the preamble, and maybe it wasn't, but we'll look back.  I thought it was pretty clear to me.
		And that really is all that I have.  Does anybody else have any?
		(No response.)
		MS. SILVEY:  Okay.  Okay.  Thank you very much.
		MR. MCCREARY:  Thank you.
		MS. SILVEY:  Our next speaker will be the National Stone, Sand & Gravel, right?  I'm looking back to see.  Anne Kelhart and Una Connolly with the National Stone, Sand & Gravel Association.
		MS. KELHART:  You're ready?
		MS. SILVEY:  I'm ready.
		MS. KELHART:  My name is Anne Kelhart.  I manage Safety & Health at the Martin Stone Quarries Company in Bechtelsville, Pennsylvania, and I currently serve as Chair for the National Stone, Sand & Gravel Association.  Thank you for allowing us this opportunity today.  Would you like me to spell that last name?  K-E-L-H-A-R-T.  Okay.  Very good.
		On behalf of the National Stone, Sand & Gravel Association, I am pleased to present the following testimony concerning the Mine Safety & Health Administration proposed rule to establish policies, prohibitions, testing and training requirements to establish alcohol and drug free mines in the United States as published in the September 8, 2008, Federal Register.
		NSSGA is the world's largest mining association by product volume.  Its member companies represent approximately 118,000 men and women and more than 90 percent of the crushed stone and 70 percent of the sand and gravel produced annually in the U.S.  More than 3 billion tons of aggregates were produced in 2007, at a value of approximately $21.5 billion, contributing nearly $40 billion to the GDP of the United States.  Every $1 million in aggregate sales creates 19.5 jobs.  Every $1 of industry output returns $1.58 to the economy.
		Our members operate in every state in the nation.  Of the 23,054 mines in this country, nearly half of them are in the aggregates industry.  So NSSGA's membership will be heavily impacted by this proposal.  The vast majority of these aggregate mines are classified as small businesses both by the U.S. Small Business Administration's definition and by MSHA's own criteria.
		NSSGA applauds MSHA for tackling this issue in a proactive manner and notes that its predecessor organization, the National Stone Association, served on a tripartite working group with MSHA, unions and state government representatives in the early 1990s to advance substance abuse prevention in mining.  We are pleased to see that MSHA has once again resumed work in this critical area.
		This testimony will focus on some of the main concerns that NSSGA has about the proposal, and we will submit more detailed written comments covering these issues and additional matters pertaining to the rule before the October 29 deadline.
		Although many of the provisions of this proposed rule are acceptable, others need major work because of infeasibility or because they run contrary to established employment law practices.  While many of our larger corporate members already have substance abuse prevention programs in place and may utilize drug and/or alcohol testing under certain circumstances, many of the smaller companies do not yet have such a framework in place.
		Therefore, we believe that MSHA has considerably underestimated the cost of the proposed rule, particularly its cost impact on smaller mines.  We urge MSHA to reconfigure its regulatory impact analysis once more.  Cost data on this proposal can be obtained through the notice and comment process.
		NSSGA agrees that any proposal should apply in equal measure to coal and metal, non-metal mines, both surface and underground.  There is no basis for affording lesser protection to some miners than to others.  Under the substance abuse testing and training requirements, MSHA would cover all miners who receive comprehensive training and who perform safety-sensitive job duties.  Comprehensive training is defined as 24 hours training for surface mines and 48 hours for underground mines.
		However, the definition in 30 C.F.R. $66.3 covers, and I quote, "any type of work activity where a momentary lapse of critical concentration could result in an accident, injury or death".  For all practical purposes, this covers virtually everyone at the mine site, and I've heard this a number of times already this morning.  Mines are a dynamic work environment where even crossing the road to go to the parking lot could result in death due to a momentary lapse of concentration in the midst of heavy equipment.  And by the way, I didn't meet earlier with the other folks that testified who came up with almost that exact same scenario.  There's no question this is a problem.
		If MSHA intends to cover everyone at the mine who receives comprehensive Part 46 or 48 training, they should simply state that.  Introducing subjective criteria that allows for arbitrary and capricious after-the-fact interpretation forces an operator to guess at the correct interpretation.  In general, we have concerns about how this rule will be enforced as it pertains to independent contractors, particularly those persons performing work at mines and whose employees become miners by definition subject to comprehensive Part 46 or 48 training but who do not normally work within MSHA jurisdictions.
		Those contractors are mine operators under the Mine Act, but too often of late, MSHA has issued duplicate citations to the production operators for contractor violations, invoking their unreviewable discretion under the 2006 Twentymile Coal decision of the U.S. Court of Appeals D.C. Circuit.  It will be quite problematic for a production operator to verify compliance with certain provisions of this rule, such as the drug testing of contractor employees or short-term contractors whose coverage is triggered by being at the mine site more than five consecutive days.
		Privacy issues are just one of the obstacles faced by mine operators checking contractor compliance.  Although review of substance abuse programs and training records may be possible, a larger concern is that mining companies in rural areas do not have a large number of specialty contractors to choose from, and if a contractor who is normally under OSHA jurisdiction will have to put an entire substance abuse program and testing framework into place just to perform a couple of weeks' work at a mine, it's likely to simply decline the work.
		This will not only create problems for mine operators in getting quality contract work done by such specialty sectors as crane companies, electricians, drillers and blasters, but it could possibly place miners at increased risk having to use maybe folks with inferior abilities who happen to have a drug testing program.
		MSHA needs to reconsider the scope of this rule as it pertains to contractors and perhaps come up with a different definition of miner that will exclude those short-term contract workers whose work may undoubtedly involve safety-sensitive areas or else affirm in the final rule that the host mine operator will not be cited for infractions by independent contractors who work at their mine sites.
		As noted, many of NSSGA's member companies have programs in place, and many of these are modeled on the U.S. Department of Transportation requirements for commercial drivers since often it's such CDL employees are also miners.  Quite a few of these programs, however, include a zero tolerance or one strike and you're out provision for those who have positive drug or alcohol tests.
		Although reinstatement is often made available to those who self-report a problem and go through appropriate treatment and counseling, this is not the choice for those caught as a result of random or post-accident testing.  The majority of states in this country have basic employment at will principles wherein all employees can be terminated at any time with or without cause.  The exceptions are those workers subject to an employment contract for a period of time, subject to a collective bargaining agreement or subject to other company-specific disciplinary procedures that preclude termination for certain offenses.  Many companies also have seniority systems that dictate in the event of layoffs the order in which workers will be released.
		Under MSHA's proposed rule, a worker who has a positive drug test gets preferential status when compared to workers who have not broken drug or alcohol rules insofar as the company would be required to preserve the miner's job while he or she obtains treatment and to reinstate the miner afterwards.  The proposal is silent on what would happen if layoffs occur in the interim which might have otherwise resulted in the layoff of the miner.  But the rule does at least acknowledge that if the miner could be terminated for a different infraction, the company could legally take such an action.
		More significantly, however, we believe that the mandatory reinstatement provision actually will weaken existing programs and encourage drug and alcohol use by making mines a safe harbor for users at least after the first positive test and completion of treatment.  MSHA is we believe without authority to alter fundamental concepts of employment law that are well established through case law in every state and at the federal level.  If companies wish to retain a one strike provision in their programs, they should be free to do so.  Therefore, the provision in 66.400(b) must be stricken from this rule.
		MSHA should also permit existing programs that adhere to DOT five panel criteria to continue unaltered, including the decision to test for the same drugs as DOT requires under such programs plus alcohol.  This is also consistent with state mining laws in Kentucky and Virginia.
		If mine operators wish to add the other drugs listed by MSHA, they should be allowed to do so after acceptable core levels of synthetic opiates have been determined.  But under no circumstances should mine operators be required to deviate from DOT testing criteria.  The Secretary should not be permitted to add extra substances to the testing mandates in the future unless she does so through formal notice and comment rulemaking.
		This rule anticipates a high volume of drug tests that will be at the mine operators' expense, including various prehire, random, post-accident, return to duty and suspicion or reasonable suspicion criteria, plus the requirement to test any positive workers six times in the following 12 months.
		While we agree that the operator should pay for most testing, we believe that a positive tested worker should have to bear the expense for his or her monitoring if the miner returns to work following treatment.
		Moreover, we question whether there are sufficient testing companies and medical review officers available in many rural areas to handle the volume of tests in a timely manner.  Most aggregate operators may not have a current relationship with an MRO.  The rule is also quite burdensome in requiring an MRO to contact all doctors that may prescribe medications to each miner at the worksite who is subject to drug and alcohol testing.  The feasibility of this must be reexamined when finalizing this rule.
		NSSGA is also concerned that the post-accident criteria is too broad as it would mandate a test for any reportable injury regardless of severity as long as it triggered medical treatment under Part 50.  We suggest that this testing trigger be limited to those incidents that are immediately reportable under 50.10 and which are defined as accidents in Part 50.2(h).  Companies should be free of course to implement more stringent post-incident testing if they already do so under their existing programs and consistent with DOT criteria.
		We also disagree that MSHA should be authorized if it initiates an accident investigation in a timely manner to order drug testing of any persons it believes contributed to the incident or accident.  This is overly broad and interferes with the employer/employee relationship.  As a practical matter, neither MSHA nor the operator will be able to complete any type of adequate root cause investigation in the short window of time when drug and alcohol testing can be performed.  In light of this, MSHA should defer to the employer's judgment on who must be tested in the situation.
		NSSGA also has concerns about worker privacy issues, particularly since this rule envisions MSHA inspectors having access to information about positive tests.  We understand that MSHA is exempt from the Health Insurance Portability and Accountability Act, also known as the HIPAA requirement.  However, there should still be some assurance that inspectors will not reveal one miner's personal information to others or through public release and a Freedom of Information Act request.  There should be sanctions available against inspectors who violate miner privacy interests.
		MSHA suggests that supervisors must receive twice the training both initially and on an annual basis than other miners receive relevant to substance abuse prevention and indicates that such training must be in addition to the normal training required under Part 46 and 48.  Respectively, this increases annual refresher training from eight hours to eight and a half hours for miners and to nine hours for supervisors.
		There's simply no basis for expanding the new miner training or annual refresher training duration requirements.  Many companies already cover substance abuse as part of their initial and refresher training, and because MSHA acknowledges that this is a significant safety issue, it is appropriate to include this with any existing training framework.  This should be clarified in the rule, and the same duration of training should be provided for both miners and supervisors so that separate training programs will not be required relative to substance abuse and changes in the training plans will not be required.  NSSGA agrees that any person training on substance abuse prevention should be competent to do so.
		In conclusion, NSSGA supports a drug and alcohol free workplace in the mining industry, and many of its members have been proactive in this area for a very long time.  We urge the agency to modify the proposed rule in a way that existing programs can continue to be used successfully and that any rule is consistent with DOT and state law requirements concerning both substance abuse prevention and basic concepts of employment at will and that the privacy rights of all involved are adequately protected.
		Historically NSSGA has worked with MSHA on a number of initiatives, including the initial work on this topic in 1990 and again in the early 2000s during the promulgation process for Part 46.  We look forward to the opportunity of working with MSHA again to achieve the goal of a drug and alcohol free workplace.  Thank you for considering our comments today, and we will be pleased to answer any questions you might have.
		(Pause.)
		MS. SILVEY:  Thank you.
		MS. CONNOLLY:  I don't have any testimony today.  It was only Anne Kelhart.
		MS. SILVEY:  Oh, okay.  I'm sorry.  I thought you were going to -- okay.
		MS. CONNOLLY:  She's representing our association today.
		MS. SILVEY:  Okay.  All right.  Well, then I do have a few comments.  I'll go to your testimony, Ms. Kelhart.  First, with respect to your comments to us on the fact that we have considerably underestimated the costs, and I would say this both to Ms. Kelhart and to anybody else who might have the same comment or have made the same or similar comment.  If you would please, you urged MSHA to reconfigure its regulatory economic and preliminary regulatory economic analysis indeed for the proposed rule.  That's what it was, a preliminary analysis.
		I would ask if you and anybody else who hears if you could do this.  Could you provide specific data to the contrary?  You said that we underestimated the costs, so with respect to the various parameters, cost parameters in the preliminary economic analysis, if you would provide for the record before the comment period closes on the 29th different estimates, being that your suggestion is that we underestimated.  We would appreciate that.
		MS. KELHART:  In response to your concern, you will surely receive more detailed comments prior to the closing of the comment period, and we will be glad to include what data we can on the issue.
		MS. SILVEY:  Okay.  All right.
		MS. KELHART:  Absolutely.
		MS. SILVEY:  Okay.  The next comment I have is that with respect to the scope of the rule, and just so this is kind of at least as clear as it can be, I think the agency did say, and now maybe in one part of it we will be more, we can be more clarifying and as we go forward, we will try to be clarifying as we can, but at this point in the rulemaking process, we did say that the scope of persons covered by the proposal would be persons who, and that is indeed how we defined a safety-sensitive, a person in a safety-sensitive job was a person who was subject to training under 30 C.F.R. $48 or Part 46.
		Now obviously you've heard with, many of you have heard with me this morning that some programs cover everybody who comes through the mine door, and when I say well, mine gate or whatever it is, the entrance to the mine, but our intent in the proposal was to cover any miner who received comprehensive training under Part 46 and Part 48 and their supervisors, and that's just a clarification there.
		MS. KELHART:  But that still excludes other folks at the mine.
		MS. SILVEY:  I understand.  No, I'm just saying because one of your -- you said if MSHA intends to cover everyone at the mine who receives Part 46 or 48 training, they should simply state that, and all I'm saying is we did say that, and so if we were not totally clear, I'm saying that right now so everybody hears that.
		MS. KELHART:  I think what was confusing is there is a phrase in the document that says in some cases, it may be left to the mine operator's discretion.
		MS. SILVEY:  Yes.  Okay.   Yes.
		MS. KELHART:  And that was worrisome.
		MS. SILVEY:  Okay.  The next comment I have is on the drug testing, and maybe I'm confused here, and maybe somebody, you suggested that MSHA permit existing programs that adhere to the Department of Transportation five panel drug criteria.  And you said including the decision to test for the same drug as DOT requires.  That is also consistent with state mining laws in Kentucky and Virginia.  But I thought that Kentucky had, and somebody, anybody can correct me here because clearly, I thought Kentucky had the 11 panel test.
		(Multiple voices.)
		MS. SILVEY:  Okay.  All right.  I just wanted to make sure.  Okay.  And then let me see.  I understand and appreciate your comment on the reporting, I mean, I'm sorry, the testing, post-accident testing.  And the only other thing I would add is that you can be ensured, and I'm not sure we said anything about it in the proposal, but that under Freedom of Information Act requests and/or under information that our inspectors get in the course of accident investigations, we as an agency have to comply with all privacy and confidentiality information that we get, and under the Freedom of Information Act, we would be constrained from releasing that information.  So I just wanted to make sure that I also say that to everybody, but obviously if we didn't say that in the proposal, we could be clarifying in that regard because, I mean, that's our obligation to do that.
		I don't have any other comments unless some of my panel members have any comments or questions.
		(No response.)
		MS. KELHART:  Thank you.
		MS. SILVEY:  Thank you very much.
		Our next speakers are the speakers from the United Mine Workers of America, and I know that Mr. O'Dell is here and Dr. Weeks, and they've got several other people on their list.  Do we have all the people?
		(Discussion held off the record.)
		MS. SILVEY:  So we have Dennis O'Dell and James Weeks with the United Mine Workers of America.
		MR. O'DELL:  Thank you and good morning.  As I look around the table today, I see many friends.  And trust me, I'd like to start out by saying that we do consider our folks at MSHA our friends and friends to the miners.  But I think this is one case that may not be any fault of anybody here.  My name is Dennis O'Dell, D-E-N-N-I-S O'D-E-L-L, I apologize, with the United Mine Workers of America.
		There's a real problem, and I came here today fully with intentions to testify to this proposal, but it appears we have an even bigger problem than drug and alcohol use in the mines, and that is MSHA's ability to hold a proper public hearing where all miners can participate.  As we sit here today, and I sent three letters, Pat, one to you, one to Richard Stickler and another one specifically requesting that we have public hearings in a field so that miners can participate, as we sit here today, we have 250 miners plus in the state of Alabama in a parking lot wanting to testify, and they are being denied their right to even sign in on a sheet and been told that they can't have access, they can only put 50 people in a room.
		We have miners in Pennsylvania who are split, part of them in an audio room, part of them in a video room, and they're not able to get the full effect such as we are.  For the first hour and 45 minutes of this hearing today, I sat outside unable to get access to the same ability that the people behind me had to participate in this hearing.
		So with saying that, I would like to request that this public hearing be shut down and rescheduled at another time when miners are accommodated and have the full ability to participate at a public hearing.  This is clearly an infringement on our rights as given to us under the Mine Act and as the Congress has intended.  I think it's a fiasco and an embarrassment. Everybody in this room should be embarrassed.
		And again, it's not a personal attack to you, Pat, or anybody on your panel, but whoever came up with this asinine idea to have a public hearing that is going to deny miners the right to participate should be here today to answer to those folks that have to stand in that parking lot without bathroom facilities or anything else.  So with that, I'm asking you, can you shut this hearing down today right now?
		MS. SILVEY:  I'm going to provide everybody who wants to have an opportunity to participate at this hearing, I'm going to allow them the opportunity to provide their input.
		MR. O'DELL:  But standing in a parking lot is not participating.  And they haven't been able to hear everything that's been said so far today.  I just want to go on record that miners today have been denied the right to properly participate in this public hearing, and we object to this hearing.
		MS. SILVEY:  I appreciate it.  I understand.  Thank you.
		MR. O'DELL:  Okay.  Well, saying that, I'd like to give some comments on the proposed rule as it is, and we have written comments that we'll submit at a later date.
		MS. SILVEY:  Okay.
		MR. O'DELL:  The United Mine Workers do not support the agency's actions in proposing a new regulation to require testing for alcohol and drug use in the mine industry.  The mine workers do not want anyone who is under the influence of drugs or alcohol working in our mines, nor do our members want to work next to someone because they know that their livelihood could be jeopardized.
		However, we do not believe that this is as great of a problem as it has been portrayed in MSHA's comments.  And I hear from some of the testimony given by industry today they reflect the same opinion.  I mean, I heard somebody just say that they prescreened and did some drug testing at their operation and 97 percent of them were clean.  So the problem doesn't exist as it's being proposed.
		We personally have worked with dozens of our members' employers to implement drug and alcohol testing programs because we do remain committed to creating the safest and healthiest environments for our miners, and that can't happen when a coworker is impaired.  These programs have been in place for a number of years and have been somewhat successful.  Our biggest, what we think is the biggest failure of a lot of the industry's programs is that people, and you heard it today, people have to self-report, and one of the things that people do not understand is that drug and alcohol addiction is a disease, but it's also a disease of denial.
		My Grandpa O'Dell, God rest his soul, was an alcoholic, but he lived to be 93 years old.  But to the day he died, and I'm not proud to say this, but to the day he died, he did not say he had a problem drinking, but we saw it growing up.  Denial.  I've worked with men in the mines who have had problems, and thank God we've been able to get them taken care of and straightened out by working with the operators, but the problem in the 30 plus years I've been around the mining industry, the problem does not exist like we propose it does today.  The statistics do not support the urgent need that is being proposed as a justification for this rule.
		Reading the agency commentary on this rule, one would think that drug and alcohol abuse in our nation's coal mine is running rampant, but the agency admits in an internal DOL review accident reports failed to reveal a significant number of cases where alcohol or drugs were determined to be a causing factor.  Alcohol and drug use is a complex social and medical problem that warrants a more compassionate approach to its resolution than is proposed here.
		Mine operators, I agree, should be provided the flexibility to work with miners to find the best programs suited to their specific problems and worksites, but I think they also, the operators who are here today, need to add a side of compassion and true help for those that are in denial and understand that everybody cannot self-report their problems.
		A boilerplate standard as proposed does not provide the people involved in such a complicated issue the flexibility to design their program to fit their individual needs, nor does it provide a compassionate approach to assist recovering addicts on their long road to recovery.  Therefore, we would urge the agency to let the industry continue to do what they have been doing to resolve this perceived problem.
		Hopefully we can work with some of the folks in industry to get them beyond the narrow approach of self-denial and zero tolerance so that we don't put people out there as a menace to society but help them be able to contribute back to society by getting them the proper help that they need.  None of the recent coal mine disasters such as Sago, Aracoma, Darby and the Crandall Canyon was there any indication that drugs or alcohol being a contributing factor to those accidents.
		Indeed, in each of those tragedies, the actions or inactions of mine management and MSHA itself were to blame.  We can't help but find it more than coincidental that the agency proposed this rule in the wake of the devastating report about MSHA's actions in the Crandall Canyon tragedy.  Of course, as any politician knows, such actions divert attention act as a distraction from the issue of the day.
		The union would urge the agency to use its resources more productively to address issues that are a genuine threat to coal miners' health and safety, such as the rise in Black Lung Disease.  I could go on and on in my comments that are in this report today, but I'm going to let Dr. Weeks talk about -- he's our industrial hygienist, and he's dealt with drug and alcohol for a number of years.  My point today is that if there are miners out there that need help, we should be able to get them the help.
		And take this to whoever you want to.  I am truly, truly disappointed that we have miners standing in parking lots today not able to participate, and Pat, please, I'm not pointing the finger at you, but whoever your boss is, he ought to be horse-whipped or whoever made the decision to have these public hearings where miners cannot participate in these public hearings as the Mine Act, it's just unbelievable.  People cry about elections and people not being able to vote and voter fraud and everything.  This is a fraud.  This is a fraud.  Unless you plan on shutting down right now and getting four or five more buildings and putting miners in to where they can participate, this is a fiasco.  It's a hoax.  And I am sorry, but I take this to be very offensive on behalf of all the miners across this country.
		Now I'm going to let Dr. Weeks talk to some of those technical issues.
		MR. WEEKS:  Well, I have to add a little bit to the objection that Dennis raised.  Let me introduce myself first.  My name is Jim Weeks, W-E-E-K-S.  I'm consultant to the United Mine Workers.  I've worked for the union for about 30 years, and I also once served under miners -- substance abuse.
		I'd like to say about the venue that the electronics that make this meeting possible are impressive, and it allows for people from all over the country to participate.  But I don't think that miners' rights to participate or anybody else's right to participate should be subordinated to electronics.  What we need is a bigger room, plain and simple.  We have an overflow room across the hall that's too small.  This room is too small.  After people have testified, they have to leave to allow other people to come in to testify.  There's very little opportunity for interaction and so on.  And while the electronics indeed is impressive, it's more important to give people input into this whole process, so I associate myself with Dennis's comments.
		So let me get on to some comments about the rule.  In order to make my comments, to explain some of my comments, I want to explain some of what I bring to the table here.  I've been trained as a scientist in engineering and in public health, and I have a deep appreciation for understanding problems like before you said about having solutions to them.  It's boilerplate in engineering and it is in public health as well.
		And in particular, my training in public health, I learned like all public health professionals do something about epidemiology, which is the study of disease and injury as it occurs in populations.  And in relation to that, I have a joint faculty appointment at Johns Hopkins where I teach a course on occupational injury prevention.  So the point is I bring some expertise to the table here.  Other people bring lots of expertise.  There's a lot that can be brought to bear on this particular problem, and I don't think it's being utilized.
		Let me say something else also on a kind of a personal note.  Alcohol and drug addictions are not abstract issues in my family, nor are they in many families.  I bet if you took everybody that's participating in this hearing today, half of them could talk about a personal experience that they have had with people that have genuine addiction problems.
		I mean, you know from your own experience how difficult they are to deal with, but you also know, as I know, and I can talk about the individuals, that when people overcome these problems, they are people who demonstrated true character, self-discipline, facing up to problems, dealing with them, overcoming, getting on with their life in spite of difficulties in the past.
		In my family, alcoholism has accounted for two deaths, several divorces, many lost jobs, and many, many difficult hours, as they have in many families.  So this is not an abstract issue to most of us in this room, and I don't think we should treat it that way when we assert what we're doing with addiction.  We should take it seriously, not give it what I think is half-hearted and token attention is what this rule does.  Like Mike Wright and Dennis have said, I don't want anybody in the agency to take this personally, but we can do better.
		My basic point about the rule is that it has some fundamental defects and fundamental and ultimately fatal defects.  Now, as a way of talking about that, about the same time that this rule was proposed, MSHA also proposed your risk assessment rule, which I viewed as totally unnecessary, but that's beside the point.  In the risk assessment rule, you laid out fairly stringent criteria for what you have to show in order to set a rule.  That applied to toxic substances, but it's a generic set of criteria that could apply to any problem.
		And briefly the criteria are these.  First in order to write a rule, you have to show that a risk exists at present, in the present circumstances; second, that that risk is "significant", and there's lot of pandering about the meaning of that particular word, it's supposed to be defined by the assistant secretary, but the risk is significant; and third, that the proposed rule will alleviate that risk.
		We don't have to show that if someone is drunk or under the influence of drugs or whatever that they ought not to be driving 200-ton trucks.  I mean, that seems like -- to say it's common sense is practically, is totally redundant.  So that's not the problem.  The problem is whether or not there are people in the mining industry that are intoxicated at work, and there might be, but you simply have not shown it in any fashion.  In fact, you have not presented any estimate of the prevalence in fact these are the measures that I looked for.  You haven't shown the prevalence of alcohol or drug abuse amongst miners, even amongst the mining community.  You haven't shown it in working miners.  You haven't shown it in relation to accidents and injuries.  The data simply is not there in the preamble to this rule.
		So, on the first, on the threshold issue, have you shown that there is a level of risk, you haven't shown it.  Now it's genuinely puzzling to me because MSHA has a first-class data system.  You account for accidents and injuries and fatalities better than any other agency around.  Secondly, mine operators for decades have been doing drug testing, thousands and thousands of drug tests, and have had programs.  Where's the data?  We've asked for that from many operators.  I don't know whether you've asked it of operators that have done drug testing.
		The data was offered a few minutes ago from Thunder Basin about the percentage of negative tests.  Ninety-nine point seven I think was the number that was out there.  That means that maybe two or three or four people out of the whole population tested positive.  That's it.  I don't know over what period of time, what the circumstances were of that test, what the circumstances were before that testing was done.  It's literally uninterpretable, that number.
		Now, second, well, not having shown that a risk exists, you can't show that the risk is significant regardless of how you define it.  It's a clear case of, you know, if it ain't broke, don't fix it.
		The third test, you've not shown that drug testing results in a reduction in accident frequency.  In spite of numerous drug testing programs that operators have had, and there have been a few claims, you have weird counts for a reduction in accident and injury rates, I'm not going to take anybody's word for it.  I want to see the data.  And it would seem to me if I were operating a coal company and I were running a program like this, I would want to know if we're paying out so many thousands and thousands of dollars what did we get for it.  And I haven't seen any information like that come out.  It's certainly not in the preamble.
		Let me explain just a bit, I think there was an estimate in here that, well, let's suppose say 15 percent of a population of miners would be classified as abusers.  I have no idea whether that's a realistic number or not.  You have a series of accidents.  By chance alone, 15 percent of the people who had those accidents would be substance abusers also.  That doesn't mean that the substance abuse caused the accident or that it had anything to do with the accident.  All it means is that they're canceling that population where there's X percentage -- so that some kind of analysis needs to be done of the data to see whether or not it's a real problem.
		And I can go on to a number of details.  I looked at words like, vague words that were in the preamble such as there were a number of incidences, there was some mine operator, there's a number of mine operators, many reports, several coal mine operators, et cetera, et cetera, vague and uninformative terms.
		Now another criteria outlined in the risk assessment proposal is that MSHA based its rules governing exposure on the best available evidence.  That's the language of the statute, and it refers to published papers and the scientific literature.  Now, in thinking about this problem, I searched the biomedical literature for reports on this issue, drug and alcohol drug testing in relation to occupational injuries.  There may be 100 papers out there that address this in some organized and systematic way.  They are informative about all of these issues.  I'll make the list available to you in my written comments.  And some of them support the rule.  Many don't.  But I'll leave that to you to look at them.
		Now I think if we had come to you, we, the United Mine Workers, had come to you 50 years ago and said we want you to reduce dust, that's it, that's all we said, you wouldn't do it.  I mean, it's not sufficient information to get you to do anything.  You would say, well, we want some systematic analysis of the occurrence of lung disease and dust exposure and so on and so forth, which you should.  But that's what you're asking us to do now is to say we want to test everybody, but in the preamble, I don't see that it lays out the basis for why something should be done about this.  It could be true that something may be done, but you simply haven't shown it.
		Let me give you one example of the kind of problem that one can get into with this sort of approach.  I would venture to say that most people who test positive on drugs are what I guess we would refer to as recreational users.  They're not addicted.  They just do whatever they do on the weekend or whenever they do it, but I wouldn't say that they were addicted as to most of them.  Now these people might get referred to a program designed to help people with addiction, but they're not addicted, so the program to treat addiction for them would be somewhat superfluous.
		But if somebody comes up that is truly addicted, you know that it takes a concerted effort to help that person overcome it as well as friends, family, counselors, whoever else can be convened to do it.  It's not an easy thing to overcome and it takes a while.  And yet if the only thing that that person gets out of this program is a couple of visits to a drug counselor, not even a professional mental health person, it's clearly inadequate for them.
		So you could end up designing a treatment program that's superfluous to most people who test positive and totally inadequate for people who have real problems because you don't have a good understanding of what the data shows about the scope and dimension of the problem.
		Now we'll go into this in our written comments, but the bottom line is we think you have to withdraw this rule.  I'm not even sure you should start over.  I think you should just take a look at the problem fresh and withdraw the rule.  It will divert limited resources that are needed for mine safety.  And if you want to run drug testing on someone, maybe you should go to Wall Street and test the bankers, or there are some operators that could be tested, but I don't think you've shown a case for testing miners.
		MS. SILVEY:  Thank you.
		MR. O'DELL:  Pat, if I may, I'd just like to add a few things as a wrapup to this because I think it needs to be reiterated.  MSHA's commentary presents this proposed rule as an urgent need, but as Jim has showed you, there's no statistical data to prove that alcohol and drug use in the mining industry is a contributor to accidents and injuries.  A Department of Labor internal review of injury and accident reports referred to in the preamble of this rule would only deal with a number of instances where drug and drug paraphernalia were found.  Whether a miner was impaired and whether drugs or alcohol contributed to any accident was not addressed.  This is not a sound basis for a new rule.
		The majority of the coal industry, as you heard, already has drug testing programs and policies in place.  Statistical data for mining accidents and injuries do not support the need.  Drugs nor alcohol were involved in any of the recent major mine disasters that occurred.  Instead, those miners died as a result of actions of poor mine management or the inability to protect miners in a fashion that we need to protect miners today.
		The proposal would exclude administrative and clerical personnel from the drug testing requirement.  As we know, these workers do drive on mine property and often go underground to deliver supplies, and they usually purchase supplies when it's deemed necessary, have an effect actually on incompatible fittings for fire hoses at Aracoma that were provided.  Why would they be exempt?  Miners would be subject to their comings and goings on mine property, and that's all miners.
		The proposal further does not make clear who will be responsible for testing of contract workers on mine property or even that contract workers must be tested.  Mine operators have historically taken a hands off approach to contractors, accepting no responsibility for their employees.  This rule must make clear that the mine operator is responsible for those employees if they are hired to perform work on mine property.  Eight of the 20 fatal accidents to date have been employees of contractors.
		The rule is not even clear on which supervisors would be included in the testing or how they would be supervised.  So if a miner suspects that a supervisor is under the influence of drugs or alcohol, who is he supposed to report this to?  Would the miner have the same right to require that a supervisor be tested for reasonable suspicion as we're being scrutinized for?  The manner in which the proposal is written only subjects miners to random and reasonable suspicion testing when in fact supervisors are often alcohol and drug users themselves, as we've seen by some of the reports out of the state of Kentucky.
		The union recommends that in lieu of a substance abuse professional that a licensed mental health professional be required to evaluate miners who have violated a mine operator's alcohol and drug testing program.  Alcohol and drug addiction are recognized mental disorders and should be treated by a licensed mental health professional.  The loyalty of those providing assistance should be to the miner and should not be a part of any procedure that could lead to disciplinary action.
		The term used in the preamble in the proposal, "under the influence", is defined incorrectly to include a positive urine test for drugs.  It's well recognized that a positive urine test for drugs or their metabolics is only an indicator of previous test use and is not an indicator of actually being influenced at the time they're being tested.
		The proposed rule would incorporate the alcohol and drug awareness training program into Part 48 training, and the union has always said and believes that Part 48 training is currently overloaded with every new training requirement that has been promulgated in recent years and such training should not be crammed into the already overcrammed Part 48 training.
		The agency has proposed that supervisors be trained to be the front-line levels of detection for alcohol and drug use among miners.  The supervisors will receive a minimum of two hours of initial training with an additional one hour annually.  The union questions whether a two-hour canned training presentation would qualify anyone to recognize and deal with such a sensitive issue.  Further, as raised before, who would be authorized to recognize and deal with a supervisor who has an alcohol and drug problem as the proposal was written?  That authority is only granted to the supervisor to test the miners.
		The union questions the availability of substance abuse assistance program to the rural coal fields and those communities.  If a miner is to participate in such a program, in reality, they are likely going to have to travel many miles to gain access to get such assistance.  If the substance abuse programs are to be successful, they must be easily accessible to even the rural mining communities.  The union would ask that the agency take a survey of what programs are available and their locations to supply as a resource to the mining community.
		Further, the rule requires the use of certified facilities and agents under the HHS and DOT.  When one examines those laboratories certified under HHS, none are listed as being located in major coal states such as West Virginia, Illinois or Kentucky.  When test specimens are transported great distances to other states to reach a certified HHS lab, would exposure to conditions of transport affect the outcome of the tests?
		The union would not object to post-accident survivors being tested for alcohol or drugs.  However, we do not feel it is ethical to test deceased miners without permission of those next of kin.  The UMWA would question whether anyone should be authorized to do such an invasive test without the victim's family's permission.  To propose such a thing is unethical and a moral intrusion at the family's time of grief.
		Most everyone would agree that testing for reasonable suspicion is a useful tool.  However, anybody that works in a mine can have problems with drugs or alcohol, and this includes supervisors as well as miners.  Therefore, anybody should be able to suggest testing for reasonable suspicion, including miners.  There must be an independent source outside of their immediate supervisor to raise reasonable suspicion when their supervisor is suspected of being under the influence of drugs and alcohol.
		Bruce Watzman and I have been accused from time to time of being under the influence, but I don't think either one of us are users.  So you have to have an outside independent party that has an objective viewpoint to that who's going to look at that.
		The UMWA agrees that miners should be protected.  The proposed rule only protects the miners after the first positive test.  Thereafter, his fate is in the hands of his employer.  The union would recommend that any person in recovery from a drug or alcohol addiction be kept out of harm's way in an alternate, non-safety-sensitive position until they are reformed, clean and ready to come back to their former job.
		And I don't think it needs to be left up to the discretion of the operator because it's vague in the proposed rule as to whether they have to put them back in the job they were before.  I think if you're going to put the money and time in to rehabilitate a miner and they show an honest effort to recover that you should be able to reward them by putting them back in the job that the had before.  A person who is honestly trying to rehabilitate themselves should be encouraged, not punished.
		A person who is in rehabilitation is most likely in some cases to fall off the wagon in the initial phase of his or her recovery.  Therefore, they should be provided adequate time and chances to get their life in order.  Addiction is a serious social and medical problem which will be dealt with and should be dealt with but dealt with compassionately.
		And with that, I still recommend that this hearing be shut down until miners are provided the ability to participate.
		MS. SILVEY:  Okay.  Thank you.
		And as I said before, that everybody at this hearing today and who can hear me will be provided an opportunity to participate.
		MR. O'DELL:  That's a problem because they can't all hear.
		MS. SILVEY:  Well, I'm getting ready to modify that.  And those who may not be able to hear me because of the capacity of I assume the MSHA District Office in Birmingham, at the appropriate time, they will be given the opportunity to speak.
		With that, I only have a couple of comments, clarifying comments.  I appreciate your comments and note that and maybe you all noted it too, that in terms of the fact that the proposal would exclude administrative or clerical workers and that all workers either go at various places on the mine site that other commenters today I think at probably all of the locations that we heard people from have made that same comment.
		With respect to contract workers, and I want to just say this to everybody, I appreciate people's comments in terms of places where the proposal might need clarification, but with respect to contract workers because I've heard this before too, contract workers who would have to have Part 46 or Part 48 training would be covered by the proposal, and clearly there are a lot of contract workers who fall into that category, both miners and supervisors.
		The other thing that I would say is that with respect, and you're right, with respect to your comments on the existing training requirements, Part 46 for some of the non-coal miners and Part 48 for some of the coal miners and non-coal miners, the proposal states and I believe clearly that the training that's required under the proposal would have to be added to the existing training requirements.  So it says that, but I want to state this for everybody, and the agency made that decision in recognition of the fact of the things, the subjects that are included in Part 46 and Part 48 now.  That's all I have.
		Just for other locations who are listening, I'm getting ready to mute the button here at the Washington location, so in case everything goes quiet, you'll understand why everything is quiet, but so that you know we'll be back on in a minute.  You are not losing us.
		(Whereupon, a short recess was taken.)
		MS. SILVEY:  Okay.  We are back on.
		MS. CARR:  I appreciate your comments, and I just wanted to provide one clarification.  I heard your concern about this assessment being done by a substance abuse professional.  If I understood correctly, you recommended a licensed mental health professional instead.
		By incorporating Part 40, there are specifications that the SAP must be a licensed, credentialed, mental health professional.  It lists social workers, psychologists, and so forth.  It certainly was our intention to make sure that the person doing the assessment was qualified.
		MS. SILVEY:  You meant Part 40.  Just so everybody knows, it's the Department of Transportation Regulation, Part 40.  Okay.
		MR. BURNS:  The other issue is that personally is where they are located, whether the logistics of the program is conveniently located.  We don't want to have people drive 100 miles.  It should be in close proximity.
		MR. WEEKS:  I just have a question for Jim --the articles you cited; they are not all peer-reviewed articles, are they, or are they all peer reviewed?
		A PARTICIPANT:  They are all peer reviewed.
		MS. SILVEY:  I don't have any more comments or questions, so thank you all very much.  Dennis, you did say you will be submitting further comments.  Okay.  Thank you.
		I'm going to take a five-minute break, just so  everybody knows.  I'm going to take a five-minute break, but we'll be back in five minutes, ready to continue the public hearing on the Mine Safety and Health Administration's Proposed Rule for Alcohol- and Drug-free Mines:  Policy, Prohibitions, Testing, Training, and Assistance.
		(Whereupon, at 11:56 a.m., a short recess was taken.)
		MS. SILVEY:  Next, we will hear from Albert Aloia and Lou Barletta with Consol Energy with our Pittsburgh location.
		MR. ALOIA:  Yes.  Good afternoon.  My name is Albert Aloia, A-L-O-I-A.  I am the senior vice president, safety and human resources, for Consol Energy.  On behalf of Consol, I think you for allowing me this opportunity to present before you Consol's views on the Mine Safety and Health Administration's Proposed Rule for Alcohol- and Drug-free Mines.
		First, let me state that we, too, at Consol share the concerns that the use of alcohol and drugs threatens safety in our nation's coal mines and to compliment the effort of the DOL in introducing such a proposal.
		However, as written, Consol cannot support the proposed rule.  I would like to address two general areas of concern before I get into the specific areas for comment.  I should also note that if the panel makes a decision I will provide detailed written comments following the testimony of this hearing.
		The rule, in its present form, weakens existing drug and alcohol programs and lessens safety in our coal mines.  A major concern is that the proposed rule does not include all employees from the operator who are working on the property.  We have heard that over and over here a couple of times during the discussion.
		This is in direct conflict of all programs yet applied to our employees.  Our plan was developed recognizing that any employee who is doing work on the mine property under the influence of alcohol or drugs would be viewed as a detriment to safety, their safety and the safety of others.
		The proposed rule is too prescriptive, and it's difficult to establish a single rule for such an important issue that we can apply consistently and effectively at all mine locations across the nation.  Rather, the proposal should be modified to allow the operators to implement and operate and design drugs- and alcohol-testing programs in compliance with some MSHA-established minimum standards.  This will allow operators to develop alcohol and drug programs for their unique circumstances to ensure the safety of their employees.
		This approach would be similar to the process used for use control programs and ventilation programs in which many guidelines are set.
		This approach to drug and alcohol testing has been taken on by two states, Virginia and Kentucky, which have established minimum standards.  We have operations in these states, and the testing programs have worked very well there.
		Specifically for today's hearing, I would like to identify several areas in the proposed rules that prohibit Consol Energy from supporting the rules.
		Section 66.2 applies to those miners who perform safety function job duty.  Our current alcohol and drug policy affords all employees, regardless of their jobs, an alcohol- and drug-free workplace, and all employees are subject to testing to ensure that this opportunity is provided.
		What we recommend is that the requirements of 62.2 be extended to cover all employees or operators working on mine property.  All references contained within this proposal that only refers to safety sensitive positions should be modified to include all employees that would be on mine property.
		Throughout this proposed rule, the terminology "on or around mine property" is utilized.  This terminology needs to be modified to reflect "on mine property."  If not modified, this reference may be subject to include action by MSHA in areas which are beyond the operator's control, so "around mine property" but not on the operator's part.
		Section 66.100(b) provides that a miner who possesses or has used a prohibited substance will not be in violation of this part, provided that an MRO has determined that the miner has a mild prescription substance and is using it as prescribed.
		This section should be expanded.  Initially, the operators and MROs should determine that an employee has a valid prescription and that it is being used as prescribed.  Afterwards, the employee's physician should be required to certify prescribed usage of the prohibited substance and that it's appropriate for use by employees on the mine property.  The operators and MORs should concur with the prescribing physician's determination.
		Section 66.300(b) states that the mine operator must follow the U.S. Department of Transportation's requirements found in C.R.F., Part 40.  Consol realizes that the 39 -- have new guidelines and standards for whether the review officers continue maintenance and records through the Medical Information System.  However, even with these attributes, we must ask the question, is this the best standard for drug testing?
		The EAP standards were adopted only the urine test for drugs and the breathylizer test for alcohol would be utilized.  Advances in technology, including the introduction of DOT standards, should not be discounted, and alternative testing methods should be available for use to determine if an employee is in violation of the alcohol and drug policy.
		Many of our plans that are in effect already utilize additional methods for making these determinations.  On scene, when a doctor addressed the issues present at that time.  As we can see today, with the use and abuse of different drugs, the methods available for testing changed.
		In the 1980s, we could not anticipate the challenges we have today with more -- the introduction of synthetic and semi-synthetic drugs.  As we've seen from the DOT statements, the need for additional drug collection and methodology for testing has changed, and will continue to change, as time goes on.
		This points to my earlier proposal, that the plan should set minimum thresholds which would allow operators to incorporate changes in technology and testing into alcohol and drug programs.
		Section 66.306(a)(1):  "The operator shall also be authorized and be required to have a toxicology test conducted on the deceased employees, and a minimum test for all substances listed in 66.301."  This information is valuable in such a situation and should be mandatory.  Recently, our Kentucky and Virginia state laws addressed this issue, but this insistence places an unintended burden on the operator.
		Section 66.400(b):  "Mine operators shall not terminate miners who violate the mine operator's policy for the first time."
		We are adamantly opposed to this position.  The question must be asked, why would DOT, DOL wish to condition mine employees to violate the safety standards, and, more importantly, why would DOL limit the action that companies may take to ensure the safety of their employees?
		The Department of Transportation, with their current drug and alcohol regulations, does not interject itself into an employer's decision to discipline an employee for violating drug and alcohol rules.  Similarly, MSHA does not inject itself into an employer's decision to discipline an MSHA-covered employee for the violation of a safety standard or an MSHA regulation.
		MSHA considered writing a protocol for what disciplinary action would be taken when an employee walks or works or travels in the -- everyone realizes that events -- even on single occasions can have a catastrophic consequence.  This catastrophe is waiting to happen if being on the mine property while under the influence of alcohol or drugs -- the operator must have the discretion to discipline its workforce in accordance with its policy and its labor agreement.
		It should not be mandated to establish the mental attitude that employees are free to violate a safety standard without consequences on the first occasion.
		We, at Consol, have a zero tolerance and feel that 66.400 is a backwards step in safety.  As written, this states that the operator return to duty an individual that had made a decision, a conscious decision, to work while taking a prohibited substance.  MSHA does not approve of the mandatory first offense rehabilitation, or "Get Out of Jail Free" card, provision in this regulation.
		In conclusion, there are two overwhelming points that I wish to read for the list.
		First, many companies have established their own alcohol and drug policy, and any regulations implemented may not meet the needs of existing programs.  A mandatory second-chance offer for someone who is unfit for work, using drugs or alcohol, certainly we can restate it.
		Two, these regulations should establish a minimum requirement for all drug and alcohol policies in the industry.  Operators will then use these new requirements as a basis to develop specific alcohol and drug programs to ensure the safety of their employees.
		We appreciate the time and effort that have been put forth to address the concern of alcohol and drugs in the workplace and the opportunity to present our views on the proposed regulation.
		We strongly urge the panel to consider the testimony that has been provided today.  As previously stated, I will also submit written comments to be included in this important issue facing the mining industry.  Thank you.
		MS. SILVEY:  Thank you.  I have a question that I would like to ask you, and maybe, by this time, at this point in the public hearing, I think I have refined it enough to be able to articulate it to you, and you have, and I think you noticed that probably, you have given some of the same comments that we have heard so far this morning, so I won't belabor them and ask you anything else about them, but just suffice it to say, I recognize that some of your comments are the same as those that we heard earlier.
		But on a couple of things we heard earlier, I would like to refine to see if I could get some additional information from you.
		You mentioned Consol's program and the drug and alcohol testing, according to DOT, but you also mentioned, as did some other speakers this morning, other testing methods, according to other procedures that you have.
		I would like to know two things.  When it comes to other testing methods, which standards are you using?  What testing methods are you using, according to whose standard?  When I say "whose," I mean what entity.  That's the first thing.
		The second thing is, with respect to these other testing methods and other standards, which drugs do you test for?
		MR. ALOIA:  Well, the testing is for the same drugs that are in the DOT standards, but there's other methods, like the hair method --
		MS. SILVEY:  Right.
		MR. ALOIA:  -- other methods that are out there now that currently have 30 years being developed since the DOT standards were established in the eighties.  Okay?  While DOT has no review, they have been talking about changing some of those testing methods, but they have not been able to establish that yet.
		We use the same criteria that the DOT used, but we use just a different method to get there.
		MS. SILVEY:  Okay.  But whose are they?  Whose standards are these?  Which organization?  Now, I think I kind of realize what I meant to say this morning earlier.  By which organization are these standards?  Whose are they?
		MR. ALOIA:  They are still based on the DOT standards as their requirement; it's just a different way of testing.
		MS. SILVEY:  I know, but I'm making this up.  Are they the standards of, you know, the National Institutes of Health or some other organization?
		MR. ALOIA:  I'm sorry.
		MS. SILVEY:  Maybe somebody -- could you please come to -- Ms. Blevins, can she come to the mike, and maybe somebody else can help me here?  I would like to get this question answered now.  That's where I sort of wanted to go this morning, but I hadn't figured it out.
		MS. BLEVINS:  I'm Helen Blevins, and the question that you asked was, which standards are presently used for --
		MS. SILVEY:  When you do testing according to other methods, i.e., PAR and what other methods now.
		MS. BLEVINS:  What we have incorporated is the FDA standard.
		MS. SILVEY:  Okay.
		MS. BLEVINS:  And we also are following the SAMHSA Labs and making sure that anything that is taken to a lab is through a certified lab, according to HHS.
		MS. SILVEY:  Now, do you test for other drugs than are covered by DOT?
		MS. BLEVINS:  We do, and everything that is in the proposed rules right now is where we're at.
		MS. SILVEY:  Okay.
		MS. BLEVINS:  The only section is, a lot of times when companies are working with the SAMHSA Labs, the labs already have established certain panels of drugs, so the only other addition -- we do have one addition, which is the methyl qualines, and that would be the only other exception, too.
		MS. SILVEY:  Thank you for being a help.  I could tell when I looked back at her, she knew.  It was unfortunate that I didn't figure it out this morning, but thank you very much.  You answered it.
		MS. CARR:  Just a clarification to make sure I understand.  So both DOT and the SAMHSA guidelines to laboratories and the whole process apply only to those five drugs and only to the urine, but you're basically adapting those, to the extent that they fit, but realizing that there is certification for the labs and for the process, either from SAMHSA or DOT.  It really doesn't apply to alternate specimens or --
		MS. BLEVINS:  We do, but it goes back to the FDA.
		MS. CARR:  And the FDA is a medical certification.  That doesn't really speak to the workplace application of those technologies.  So it seems that we've got kind of a mixed combination of setting procedures for each company that take the best from the various standards to come up with a standard process.
		MS. BLEVINS:  But the guidelines could be very helpful in order to follow what the DOT has established, the guidelines for the criteria for the testing methodology and the types of samples; that is correct.
		MS. SILVEY:  Okay.  I understand.
		MS. McCONNELL:  Do you test the 10 general drug testing that we're proposing using here or just the urine?
		MS. BLEVINS:  Let me address that, and I can state right now, for Consol Energy, Consol is not presently using hair.  What we are trying to establish is that, going down the road, you want to leave the types of testing methodology open so employers would be able to have the ability to use what they would like.  I know that there are other employers today that are actually using the hair, but I cannot speak for what tests they are actually going to.
		MS. SILVEY:  That's a good segue.  So everybody who is listening now, if other companies are using hair, then, if you would, when you provide your comments, if you do use these other methods, to include other than urine for drugs and breathalyzers for alcohol, if you're using hair, et cetera, or whatever, before the record closes, if you're providing us comments, if you could include that in your comments, we would be most appreciative, for other organizations in the room.
		Okay.  I finally think I've got it straight now.  Thank you very much.
		Does anybody else have anything?  Thank you.
		Our next speaker will be, and as I do this, I'm going to be open to everybody, so you can hear what I'm doing.  I'm deviating from my own rules that I gave this morning.  I'm deviating from one part of my rules.  I'm being consistent with the other parts.
		Our next speaker will be Chris Hamilton, who will be from our Beckley location, by phone only.  I hope you are there, Chris.
		A PARTICIPANT:  The Beckley, West Virginia, line is open now, so, Beckley, please identify yourselves.
		MS. SILVEY:  Our next speaker will be Chris Hamilton from Beckley, West Virginia.  Are you there, Chris?
		MR. HAMILTON:  I am here.
		MS. SILVEY:  Yes, sir.  You're next.
		MR. HAMILTON:  Well, good afternoon.  My name is Chris Hamilton, senior vice president with the West Virginia Coal Association.  The West Virginia Coal Association is a trade association comprised of coal-producing companies that collectively account for nearly 80 percent of the states' coal production, both surface and underground.
		We also are comprised of a number of equipment manufacturers, a variety of mine vendors, supply companies, land companies, mine reclamation, maintenance, and a number of general service companies.
		We appreciate the opportunity to comment on MSHA's proposed drug-testing rule here in Beckley, West Virginia, today.
		I would also like to just say that we wholeheartedly support and embrace the comments that have been offered by the national mining association earlier this morning and by our previous speaker from Consol Energy from the Pittsburgh site.
		Allow me to also compliment the agency for its clear recognition that is intertwined throughout the preamble from the proposed rule that the use of alcohol or prohibited drugs should not be permitted around mining operations and that individuals under the influence of the same should, likewise, not be permitted in, near, or around mining operations.
		Despite a couple of high-profile accidents that have occurred over the past couple of years, the industry has made great progress with its overall mine safety performance.  But as we know, mining has its inherent hazards, hazards which must be averted or recognized and then managed and controlled.
		The fact is, the mine environment requires supreme vigilance, 24/7.  Individual attention to detail and alertness are also essential.  We also observe that MSHA, likewise, recognizes these principles within the rule preamble.
		The use of alcohol and drugs within the mining industry was first observed by MSHA over 25 years ago, when it joined with mining states and, in particular, the State of West Virginia, to identify appropriate treatment centers and available programs for individuals suffering from drug or alcohol use.
		We do not understand why it has taken a quarter of a century to advance this rulemaking from the time it first realized that drug and alcohol use is a problem within the mining sector.
		But we're here today with a proposed rule which, we believe, evidences a major step forward towards making greater improvements in workplace safety.  However, that desired outcome, and our shared goal of zero accidents, will only be realized if substantial changes are made to the proposed rule, which, in its current form, serves to undermine, or seriously compromise, those drug-testing programs currently being administered or carried out by a number of progressive states and companies within the State of West Virginia and around the country.
		As you're aware, many companies in West Virginia and around the country have implemented mandatory drug-testing programs.  Most of these programs provide for a zero tolerance for drug use and subject individuals to discharge upon testing  positive.
		These companies place unlawful drug use right alongside of smoking in the underground mining environment, right alongside of working on energized electrical currents, or going inby supported roof in an underground mine.
		A large number of these programs, however, provide the opportunity for individuals with drug problems to voluntarily involve or solicit help in improved employee-assistance programs or other recognizable medical professionals before they test.
		MSHA's proposed rule weakens these programs by allowing individuals who test positive to have additional chances and possibly subject themselves or others to potential safety hazards, the hazards that we're attempting to eradicate from the workplace with this proposed rule.
		MSHA's policy sends the message that it is tolerating illegal drug consumption from miners.  Where a policy is zero tolerance, lives are saved, and miners know not to use because use will result in a discharge at a zero-tolerance mine.  It fully serves to change behavior and additionally motivates ones in need of help to get it.  It also has a greater potential to effectuate a cultural change, the type of change that's needed to combat this serious problem.
		We have also heard here today that several states have reported successes in their overall mine safety program by implementing mandatory drug-testing programs.  These states permit discharge of first-positive tests, and you have also heard that MSHA's proposed rule, which prohibits discharge of first-positives, seriously hampers or guts the successful state programs in our neighboring States of Kentucky and Virginia.
		We are particularly concerned that we do not have a uniform federal rule because we have reason to believe that many of the miners who have been decertified in the States of Kentucky or Virginia are seeking employment in West Virginia.  West Virginia does not have a mandatory drug-testing program, but one is being considered at the present time.
		We also heard today that there have been over 600 individual certifications revoked in the State of Kentucky, and I believe there have been several hundred in the State of Virginia, we think.  Again, without a national, uniform standard of zero tolerance, we have reason to believe that many of those miners or individuals are seeking employment here in West Virginia.
		Likewise, without any state law mandating mandatory drug testing, we also have reason to believe that when an individual is discharged from one mine, he seeks employment at another mine within the state's boundaries that does not have a mandatory drug-testing program.
		So, on balance, we support the proposed rules requiring mandatory drug testing.  We think it is seriously flawed, in that it basically condones the use of alcohol or prohibited substances.  It condones it by, as a previous speaker noted, providing all miners with a "Get Out of Jail Free" card, and that's how it's being characterized around the country.
		The issue of whether or not an individual should be discharged upon testing positive for known illegal substances has never been raised until, at least, around our area here in West Virginia, until this proposed rule was made public.
		Miners know not to use drugs.  There is no reason to provide a second opportunity, at this point in time.  There are ample warnings.  Our schools, posters around public places, our mine offices, and our houses are replete with antidrug, "Say No to Drugs" posters and other forms of alerts.
		I dare say that there is not a miner in this state, or in this country, for that matter, that doesn't know you're not supposed to use drugs, and if you use drugs that are illegal or alcohol, and it potentially shows up at the workplace, your job, your livelihood, are, indeed, threatened.  There is not a miner that doesn't know that.
		So we really question the basis, the rational thinking, behind this particular policy embedded in MSHA's proposed rules.
		Now, at some point, it needs to be said, and so I'll say it, we don't believe that drug use is any more prevalent around coal mines than anywhere else.  In fact, we truly have an exceptional workforce within the mining industry, one that possesses an abundance of skills and confidence and is truly an industrial professional, but we also know that there is a problem in society, and it's currently been linked to some of the incidents and accidents within and around mining operations.
		So we do support the proposed drug-testing rule, again, with modification.  We think it's just absolutely critical that we have a zero tolerance once an individual is trained and goes through orientation and employed within the industry.
		Someone made the comment earlier that it seems like this rule was more protective of that minute percentage of workers within the industry who may be influenced by an illegal substance, not the 90-plus percent of the professional workers within the industry who have a zero tolerance for drug use or for anybody using drugs.
		So, with that, I'll conclude and wrap up.  We do intend on submitting more detailed comments before the close of the comment period, and if you have any questions, we'll try to respond.  Thank you.
		MS. SILVEY:  Okay.  Thank you.  Thank you, Mr. Hamilton.
		I don't have any further -- as you noted, you made some of the same comments as some of the other people we have heard so far this morning.  We appreciate your comments, and so you said there are further comments before the record closes on October 29th, so we look forward to your additional comments, and unless any of my panel members have questions, I don't have any, but just to say to the people at the Beckley location, we will get back to you.
		MR. HAMILTON:  We also had another speaker, Max Kennedy, that was --
		MS. SILVEY:  I understand that.  We will get back to the Beckley location.  Okay?  Okay.  Thank you.
		(Discussion held off the record.)
		MS. SILVEY:  Do I still have the Beckley location?
		MR. HAMILTON:  Yes.
		MS. SILVEY:  I still have the Beckley location?
		MR. HAMILTON:  Yes, we're here.
		MS. SILVEY:  Okay.  Max, are you there now?
		MR. KENNEDY:  Yes, ma'am.
		MS. SILVEY:  Okay.  You go on and make your presentation, please.  If you would, please spell your name when you get to the mike.
		Max, can I ask you, is Edgar Oldham there?
		MR. KENNEDY:  No, ma'am.  He is in Kentucky.
		MS. SILVEY:  Okay.  All right.  Thank you.  Okay.
		MR. KENNEDY:  Okay.  My name is Max Kennedy, M-A-X  K-E-N-N-E-D-D-Y, with the United Mine Workers of America.
		Before I start my comments, I would like to inform you that the miners that came here to testify today have walked out in protest of MSHA's conduct in the State of Alabama.  They have yielded their time to those miners that are waiting there.
		MS. SILVEY:  Okay.
		MR. KENNEDY:  Okay?  I want to echo our comments that were submitted several weeks ago, that this rule does not address our personnel that come on mine property that could affect health and safety of miners working surface and underground.
		This would include anyone that comes on mine property that would initially need hazard training for areas that they will work or travel.
		So, you know, if you're going to define it, then it should be anyone that comes on mine property.
		I don't understand what's driving this regulation.  Apparently, everyone that I've heard testify today is disappointed with MSHA and the way that they have written this rule.  Apparently, the operators, the responsible operators, have gone ahead and dealt with this problem, and we have dealt with this problem, for over decades, but there is no data that I've seen that drives this regulation to be promulgated.  We would like to see that data submitted to us for review.
		I will yield the rest of my time to the miners in Alabama that are waiting to speak.  Thank you.
		MS. SILVEY:  Thank you, Max.  Max, you said that Edgar Oldham was in Kentucky.
		MR. KENNEDY:  I think so.
		MS. SILVEY:  Do you know where Jim Lamont is?
		MR. KENNEDY:  He should be in Pennsylvania, but I'm not sure of that.
		MS. SILVEY:  And what about Ron Bowersox?
		MR. KENNEDY:  He should be in Pennsylvania.
		MS. SILVEY:  Okay, okay.  Thank you.  Thank you very much.  We appreciate your comments.
		A PARTICIPANT:  Ron is in Pittsburgh.
		MS. SILVEY:  Okay.  Is Ron going to testify?
		(Pause.)
		MS. SILVEY:  Okay.  Next, we will have Bill Ferdinand from our Denver, Englewood, location.  Can we switch to our Denver, Englewood, location, please?  Okay.  Thank you.
		MR. FERDINAND:  Well, good morning or good afternoon, as it may be.  My name is Bill Ferdinand -- Ferdinand is spelled F-E-R-D-I-N-A-N-D -- and I'm here representing Barrick Gold of North America.  I am the company's director of mine health and safety, located in Salt Lake City.
		Presently, Barrick has five operating gold mines in the western United States that employ approximately 3,400 people.
		This oral presentation will touch upon the major items of concern regarding MSHA's drug and alcohol abuse program.  Our written comments will be submitted prior to October 29th to discuss a more-in-depth analysis of the MSHA proposal.
		Let me start by beginning to say, overall, we support MSHA's intended outcome; namely, alcohol- and drug-free mines that allow for a safer and healthy work environment.
		Although Barrick is pleased that MSHA is taking the initiative on this important matter, we believe that the proposed rule, as currently published, actually diminishes workplace safety relative to Barrick's existing drug and alcohol abuse program and which, if enacted, as presently drafted, will actually weaken and provide a less-safe working environment than presently enjoyed by our employees, contractors, and visitors to our operations.
		Barrick believes that MSHA should only propose nonthreshold requirements relative to drug and alcohol abuse programs that do not preclude an employer, bargaining unit, state, or other entity from developing, implementing, and maintaining programs that exceed the minimum threshold standards.
		Many mines in the United States, including Barrick's, have such programs.  These programs are working effectively to combat drug and alcohol abuse.  We do not believe that MSHA should replace effective drug and alcohol programs with less-effective, prescriptive programs.
		Briefly, I would like to provide an overview of Barrick's drug and alcohol program.
		Barrick requires prospective employees to take drug tests prior to employment, during employment, random drug tests and alcohol tests to ensure our workplace environment remains a safe place to work.  Employees that refuse, fail, or alter their tests are subject to disciplinary action, up to and including termination.
		However, prior to reaching that point, to assist our employees and their families, Barrick's drug and alcohol program encourages its employees to voluntarily seek help through the treatment counseling available under our program.  Once the employee satisfactorily completes the substance abuse rehabilitation program, as provided by professional healthcare people, they reenter the workforce without consequence.
		If an employee does not seek assistance before a positive drug test or alcohol test under the program, it is too late for that employee to avoid disciplinary actions for violating the policy.
		To further enhance the safety of our work environment, the policy provides for-cause testing of drug and alcohol during vehicular accidents and those involved in injuries who are perceived to be under the influence.
		These elements and other provisions within Barrick's policy, including training, contractor requirements, confidentiality, prescription drugs, call provisions within Barrick's program, enhance and improve our work environment.
		We are very concerned that, under MSHA's proposal, it will actually weaken our zero-tolerance program and will, instead, put my miners at risk.
		In concert with this overarching concern and MSHA's apparent one-size-fits-all approach, there are a number of other significant issues which I would like to briefly address for the record.
		The first of these concerns is the ability to use alternate testing methods.  Under the prescriptive proposals, we would be limited by the methods that we could potentially use to monitor drug and alcohol abuse.
		Barrick, as part of this program, uses a U.S. Food and Drug-approved alternate drug-testing methods, in collaboration with typical Department of Transportation urinalysis.  For example, as part of our hiring program, Barrick uses hair testing as an integral part of our overall drug and alcohol preemployment screening program, and the hair-testing methodology that is used is approved by FDA.  FDA has a long association with the Substance Abuse and Mental Health Services Administration, or "SAMHSA."
		Under the federal testing program for federal workers, SAMHSA's drug testing requires the use of products cleared or approved by FDA.  The hair method used by Barrick meets the cutoff levels for drug screening and confirmation established by SAMHSA.
		An advantage to using hair testing as a screening tool is that it detects drug usage over a longer period of time, generally up to 90 days.  Drugs, such as cocaine, methamphetamines, opiates, phencyclidine, are readily excreted and usually undetectable in the 72 hours after their use.  For saliva, it's undetectable after 48 hours in urine.
		The hair test allows the company to make a more informed decision on hiring prospective employees.  Under MSHA's proposal, it appears to preclude us from using this method as a hiring/screening tool.
		Another alternative method we utilize is due to the remoteness of some of our mines, is, for instance, the for-cause testing, such as vehicular accidents, vehicle incidences, or the suspicion of being under the influence of drugs or alcohol.  We use the ITAP drug-scanning urinalysis method.  This method has FDA clearance also and can cover up to a 13-panel test, including the 10 items proposed by MSHA.
		This test is used as a screening tool, in the event of an accident or when there appears to have been an individual under the influence.  This test allows for a timely review of an incident within five to six minutes after submission of a urinalysis.
		Upon a positive sample, the sample can be safely utilized as a confirmation sample when sent to a certified lab for analysis.
		Once again, we believe and recommend that MSHA should revise its proposed rule to assure it does not preclude an entity from having a more robust drug and alcohol program that enhances the effectiveness of its program.
		Secondly, the proposed rule, at 66.100(d), requires a medical review officer to determine if a miner has a valid prescription prior to being permitted or used on or around mine property.  This would infer that individual has a prescription who tested prior to working at the site.  This would require an individual whose prescription is new or perhaps changes to be tested again prior to being able to work on site.
		Barrick does not believe that this should be the unintended outcome of the proposed rule; rather, the intent should be to determine, through normal random drug testing, that the prescription is being abused.
		Third, Barrick's drug and alcohol policy contains provisions that support and encourage employees to seek voluntary enrollment in a substance abuse program provided by the company to assist the individual and continue to provide that need for the family.  It is our belief that such voluntary acknowledgements cannot be enacted to avoid testing and disciplinary actions as a result of a potential positive contributory test.
		However, various MSHA statements in the preamble and in the proposal conflict with each other and effectively negate all voluntary incentives to seek assistance by an employee.
		For example, within the preamble discussion, in regards to 66.204, MSHA specifically states, and I quote:  "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."
		Inconsistent with this overarching intent to help the individuals to seek assistance is MSHA's proposed rule at 66.403.  MSHA's proposal at this citation states, and I quote:  "A mine operator who verifies a positive drug test result, or verifies an altered or substitute drug test, must immediately remove the miner from performing job duties and refer the miner to a qualified SAP."
		In essence, the miner's incentive to voluntarily seek assistance becomes moot as they will be referred to a substance abuse program, in any event, whether before a positive drug test or after a positive drug test, eliminating the incentive to volunteer yourself to such a program.
		Contrary to MSHA's underlying intent, mainly to help the individual, it has the opposite effect that it will allow the individual if he was to game the system.
		As presently proposed, the person could voluntarily seek assistance, satisfactorily complete the return-to-duty process, and subsequently fail a drug and alcohol program, allowing them once again to be referred to an SAP program for a second time.
		Finally, MSHA, in its preamble at 66.400, states, and I quote:  "The process for removal and referral of potential return to work has been modeled after the provisions of the DOT rule."  However, Barrick would like to note that the Department of Transportation rules do not address employment actions leading up to the company policy or the bargaining agreement.
		The Department of Transportation states, and I quote:  "All employment businesses belong to the employer.  DOT regulations do not address employment actions, such as hiring, firing, or leaves of absence.  DOT and USGC regulations may prohibit you from performing your safety-incentive functions after a positive test result or a refusal to submit to testing.  You should be aware, altered or substitute DOT drug or alcohol tests may trigger consequences, based on company policies or employment agreements."
		MSHA's proposal, however, is divergent opposite from these DOT regulations, and, I think, unwisely, interjects itself into labor-management matters for these proposals.
		Barrick believes there must be incentives for individuals to effectively implement a voluntary assistance program coupled with a drug or alcohol abuse testing program.  This is the purpose of a zero-tolerance drug and alcohol program.  A zero-tolerance program allows individuals to seek voluntary assistance without any consequence to their employment, provided they do so not to avoid a positive drug or alcohol test.
		We believe MSHA's proposal, in this regard, is overly flawed, as it is reactive versus being proactive in addressing initial drug use and those who abuse drugs.
		Barrick doesn't believe the intent of this role should be to punish people, but we do believe that each individual is responsible or accountable for the decisions they make.  To improve safety in our nation's mines, we must work proactively to prevent the use of illegal drugs and abuse of alcohol, and this is achieved through a zero-incident program.
		In conclusion, we believe that MSHA should only set minimum threshold standards for its proposed drug and alcohol program.  We believe this would eliminate much of the one-size-fits-all approach taken by this proposal, allows companies the flexibility to implement more effective drug and alcohol abuse programs, thereby eliminating or reducing the risk in our mines by providing for a safer work environment.
		With that, I would like to say that that concludes my presentation, and I'll open up any questions.  Thank you.
		MS. SILVEY:  Thank you, Mr. Ferdinand.  I just have a couple of comments, and I think most of them are in the nature of being clarifying, actually not that many, because now we are seeing a repetitive theme here.
		I said "comments," but the first one actually is a question.  With respect to Barrick's program, on your random testing, what percentage of employees do you test?
		MR. FERDINAND:  We test all the way from the president of the company down to the new hire.
		MS. SILVEY:  I meant, for the random, do you have a percentage that you test?
		MR. FERDINAND:  We sample 20 percent of the miners, or, I would say, the employment population in each program.
		MS. SILVEY:  Okay.  Thank you.  The next question I have is, and thank you for your comments on the other methods that you use, your alternate testing methods.  I think I have a fair understanding of your comments there.
		But I would like to comment on your interpretation of the proposal, in that, as you said, under Barrick's program, you encourage people to seek voluntary enrollment or voluntary assistance, and I think it was one of the goals of MSHA to structure the proposal so that it did, indeed, have an element of encouraging miners to seek, and I mentioned that earlier, to seek voluntary assistance prior to any coming under testing under any of the other provisions of the rule, whether they be random, post-accident, for-cause, or whatever.
		Now, you know, if we didn't clarify as clearly as we could, we did specifically say -- I thought we fairly clearly stated -- that it was the intent of the agency to encourage persons to seek assistance but to not let that get in the way of being used as a crutch so that they would continue to do it over and over to get out of any issues that they might have.
		MR. FERDINAND:  As I remember the proposal, a person who voluntarily can get themselves through an EAP or SAP, as their free will, upon successfully completing rehab, there's no consequences in getting back into the workforce.  However, if that person then falls off the wagon, he is reenrolled into another SAP program.  So it's, basically, two strikes and you're out versus the first time where you voluntarily do it, and that's the difference.
		MS. SILVEY:  Okay, okay.  I guess that is accurate.
		That's all I have, all of the comments I have.  Does anybody else have any?
		(No response.)
		MS. SILVEY:  Okay.  Thank you very much.
		Our next speaker is the MARG Group, Brian Hendrix.
		MR. HENDRIX:  Ms. Silvey, we switched with Mike Crum.
		MS. SILVEY:  Then you did switch.  Okay.  So that's accurate.
		So next, then, is Mike Crum, so we continue at the Denver, Englewood, location with FMC Green River.
		MR. CRUM:  Thank you.  This morning, I have  two sets of comments:  one on behalf of the Wyoming Mining Association, as well as the FMC Corporation comments.  I will start with the Wyoming Mining Association comments.  My last name is spelled
C-R-U-M.
		The Wyoming Mining Association appreciates
the opportunity to provide comments on the proposed rule regarding alcohol and drug treatment.  The Wyoming Mining Association, or "WMA," is a state-wide trade organization representing 34 mining companies producing bentonite coal, stroma, and uranium.
		Wyoming leads the nation in the production of all four of those minerals.  Wyoming mines produce 40 percent of the nation's coal, which is shipped to 38 states, from Washington to New York to Florida and Minnesota.  Wyoming mines also produce 90 percent of the soda ash used in the United States and ships soda ash to countries around the world.
		WMA appreciates the opportunity to comment on the above-referenced regulations.  The WMA, like MSHA, is genuinely concerned about the safety of our miners and has a multipronged approach within our safety program to enhance the safety and health of our workplace, as well as that of our miners.
		MSHA is to be commended for understanding the significance of substance abuse in the workplace and for providing regulations to help improve the safety of mines.  However, the WMA strongly encourages MSHA to consider this rulemaking a performance-based standard and allow mine operators to utilize the proposed rule as a minimum standard.
		Operators who currently have a zero-tolerance policy in effect would be regressing to a less-rigorous approach to mine safety by being forced to adopt these regulations as written.
		Operations that have less-stringent requirements would be substantially improving their programs with the assistance of this rule.
		As any mine operator would agree, drugs and alcohol have no place in mining.  As noted, historically, mining has many inherent risks that can have drastic impacts on the safety and welfare of miners and their families.
		Miners, both surface and underground, operate large, expensive equipment on a routine basis.  The use of drugs and/or alcohol can severely hinder an individual's judgment and put the miner, co-workers, and equipment at risk.
		Many operators today have some format for dealing with substance abuse in the workplace.  Some of these operators have a zero-tolerance policy.  The current rulemaking would contradict this policy.
		MSHA has traditionally had a performance-based set of standards, where the regulatory requirement was the minimum.  This rule should be treated no differently and should allow these operations to continue to perform above the MSHA standards.  For others, this rule is an enhancement to existing practices and, again, should be considered the minimum requirement.
		The following comments relate directly to specific sections of the rule.
		Section 66.101, "Prohibited Behaviors."  Subparagraph (b) indicates that these rules would allow for a lower blood alcohol concentration from what many operators currently have to comply with.
		The question is, "What is the premise for using a lower BAC than that already established by the DOT?"
		66.200.  It would seem appropriate for the education and awareness program to be directed at all miners, regardless of their supervisory tasks, "referrals for assistance for miners who violate this rule" should be amended to "availability of assistance for miners who come forward seeking treatment."  Many operators have assistance available; however, after a drug test, it is too late for the miner, either salaried or hourly, to ask for assistance.
		Where a zero-tolerance policy exists and is well understood by all employees, hourly and salaried alike, the opportunity for assistance is available prior to the random substance abuse tests.  Section 66.200 should establish this rule as a minimum standard.
		Education and awareness program for nonsupervisory miners; it would appear that these programs are targeted for hourly or wage owed personnel.  If the education and awareness program is good for one group, it should be delivered to all employees, regardless of their supervisory capacity.
		As this rule is currently written, some employees could easily be left out of any education and awareness training.  It is not clearly discussed in this section or in 66.203 whether or not all mine employees are required to attend the training.  The rule should be rewritten to address all miners.
		Subpart (e).  First, this section would be less stringent than the policies of many operators.  If MSHA proceeds with the prescriptive conditions suggested in Subpart (e) and does not allow more stringent program requirements, many operations would be forced to revise company-wide programs to a less-stringent approach for both MSHA and OSHA divisions to ensure a consistent approach throughout the company.
		In the past, MSHA's standard-setting process has been to set performance standards, which operators have been applauded for exceeding.  The current suggested standards will take many operators' programs backwards.
		The standard should allow operators the ability to maintain a zero-tolerance policy if one is in place prior to the time of this rulemaking.  Areas of concern for operators with less-stringent programs include the items as listed.
		66.400, "Consequences for a Miner Failing an Alcohol or Drug Test or Refusal to Test."  A mine operator should not be required to follow Sections 66.405 and 66.406 for miners who refuse to submit to testing or when intentionally adulterate or substitute a urine specimen.
		Actions of adulterating or substituting a sample should constitute falsification of documentation.  In the justice system in the United States, refusing to take a drug test is the same as providing a positive sample.
		This paperwork would be required much in the same manner as training documentation.  In this instance, falsification should be grounds for termination, if the operator so chooses, and, at the very least, penalty -- the miner, instead of the operator, when violations of this section are cited.
		66.401, "Operator Actions Pending Receipt of Test Results."  This section regresses current testing protocol to allow for an instant test to determine if a sample will be negative or positive for substance abuse.  Current technology should be allowed to determine whether or not suspension from safety-sensitive duties is warranted.  For many of our members, all jobs, once you step on mine property, are safety-sensitive jobs.
		Technological advancements should be considered since the agency has stated historically that rulemaking will drive technology.  This technology is already present, and we should never allow, or put ourselves in a position that would allow, someone to be placed in jeopardy of injuring himself or others by neglecting available technology.
		Paragraph D, under this section, seems to contradict paragraph C.  Is there an explanation in which such withholding of pay would not adversely affect a miner's pay and benefits?
		66.403, "Operator Actions after Received Verified Test Results."  Subpart A not only allows for miners who most likely have a substance abuse problem to continue working but also allows for a dishonest miner who has falsified required regulatory documentation to remain employed.  This section is also going to cost an operator a significant amount of money to retain a less-than-desirable employee.
		66.404, "Evaluation and Referral."   This section is confusing, in that mine operators must, by the standard, provide applicants a listing of acceptable substance abuse providers.  Does this also mean that any applicant will be covered under this standard and subject to employee assistance programs paid for by the operator?
		It would stand to reason that the inclusion of an applicant in paragraph (b) would open up a significant cost to employers, as many operators require an applicant to pass a drug screen for a conditional offer of employment.
		An applicant offered a conditional offer of employment would not be hired should they fail a preemployment drug and/or alcohol test and thus would not be employees of the operators.
		However, Section 66.404 of the MSHA proposal states that mine operators would be required to offer job security to miners who violate the alcohol- and drug-free mine policy for the first time.  A statement such as this indicates that there is room for error, at least once, when, in fact, there is no room for error.
		Jobs in the mining industry require focus and constant concentration.  Section 66.404 would be sending a message to an employee that they would have a free pass on the first failure because the consequences are not such that they could be sacrificing their livelihood.  This requirement can only be viewed as a significant step backwards.
		Again, many of our members have already  instituted zero-tolerance policies.  It seems unreasonable that an operator would not only be expected to provide job security for someone who violates their drug and alcohol policy but also to find a competent, short-term replacement.  There is a large shortage of good, available workers in this industry.
		Most people seeking employment want the security of a long-term position.  In the midst of our current economic hardships in the United States, companies have a set number of employees that they can afford to have on the payroll.
		Subpart F, "Record-keeping and Reporting."  Under Section 66.500, Section (a) and Section (c) are contradictory when mine operators do not restrict access to accident reports for the safety committee's data analysis in operations where employee involvement in the state's trust requires access to accident reports by those miners, and thus would be in violation of Section (c).  The requirement to include test results and accident reports should be removed from the standard to ensure confidentiality.
		In summary, the Wyoming Mining Association appreciates the opportunity to provide comments for MSHA's important rulemaking process.  Again, we ask you to consider how this rulemaking will affect those operations that already have a zero-tolerance policy in place for the use of drugs and alcohol in the workplace.  Operations that already have zero-tolerance policies in place have set the bar for safety high, and, by doing so, have made it a priority for employees to be safe by exceeding recommendations, certainly, as suggested by this rule.
		Finally, the Wyoming Mining Association will submit written comments prior to the comment deadline.
		MS. SILVEY:  Are you through?
		MR. CRUM:  I'm through with Wyoming --
		MS. SILVEY:  Indicate that.  That was a little bit of sarcasm, quite honestly.  I know that the whole world is listening to me today, and I can't be my usual sarcastic self, but, you know, I can't help it.  Go on.  Continue.
		MR. CRUM:  I will forego the FMC comments because they are very similar to what --
		MS. SILVEY:  No, go ahead.
		MR. CRUM:  We will submit comments in writing.
		MS. SILVEY:  Okay.  All right.  Thank you.  Before you go, though, since you commented on the Wyoming Mining Association, I guess you're a member company, so you are prepared to speak to their comments.  Right?
		MR. CRUM:  Again, to my ability.
		MS. SILVEY:  Okay.  Well, several of the comments, we heard already.  The only thing I wanted to comment on, quite honestly, was the reference to ignore BAC -- so everybody knows what I'm talking about "blood alcohol content" -- than DOT.  There are people on the panel who are more qualified than I am to speak to this, but if I'm not mistaken, under the DOT regs, there is a bifurcated process, and what we did, I think, to simplify things is we didn't include that bifurcated process in the proposal.
		I think one could say that it's not a, per se, law never, but if we had wanted to be directly similar -- not similar -- the same as DOT, we would have included that bifurcated process, but we didn't.  So, therefore, since we didn't include the bifurcated process, then we did not, and so people know, this two-step process, if we didn't do that, then we included one blood alcohol content level, and that one blood alcohol content level, I believe, is consistent with DOT.
		So just so everybody would know that, I did.  I think, in my opening statement, I asked for a list of things that we asked for further information on, and that was one of the questions that the agency asked for further information on.  A number of the things that you all are commenting on, and this goes out to everybody, a number of the things you all are commenting on, we asked for additional information on that.
		So some of you are providing the additional information with the specifics.  Some of you are providing the additional information with generalities.  So, to the extent that you can provide specific comments, even if it's something that you don't like, specific alternatives, that will be useful to us after October 29th and after we proceed to making a decision about what we, as an agency, are going to do with respect to moving forward, and many of you have heard me say this in many other MSHA rulemakings.
		That's all.  I just wanted to kind of clarify that part because I stumbled on it when I heard it, and I just figured that this probably was the opportunity to clarify that for everybody.
		Does anybody else have anything?
		(No response.)
		MS. SILVEY:  Okay.  Thank you very much.  So we look forward to your additional comments before the comment period closes.
		MR. CRUM:  I just want to thank you.
		MS. SILVEY:  Okay.  Thank you.  Okay.
		Our next speaker will be, here at the D.C. location, Hunter Prillaman, with the National Lime  Association.
		MR. PRILLAMAN:  Thank you.  My name is Hunter Prillaman.  That's spelled P-R-I-L-L-A-M-A-N.  I'm the director of government affairs for the National Lime Association, or "NLA."  We represent the makers of Quick Lime and high-grade lime products.
		Lime is made from limestone, and so our members are in the business of mining limestone, so we're under MSHA's jurisdiction.  Lime is produced in about 33 states, and we employ approximately 5,000 workers in the industry.
		NLA commends MSHA for addressing the serious issue of drug and alcohol abuse in the mining industry.  Impairment by drugs or alcohol is absolutely incompatible with the mine environment, and strong measures are warranted to protect miners from the dangers posed by impairment.
		We support many of the elements of MSHA's proposal.  Indeed, most of NLA's members already have robust drug- and alcohol-testing programs in place.  We do have some concerns, though.
		Let me just mention, a few years ago, when MSHA came out with the advanced notice proposed rulemaking for drug and alcohol testing, we told our members and said, "What do you think?  What do you think about MSHA having a mandatory program?"  The members all came back, and they said, "Well, we already have programs in place.  What we really mainly want is for MSHA not to mess them up."
		So that was the comment that we filed back then, basically saying, "Well, it's okay, but we already have programs," and I think what you're hearing from a lot of people is MSHA has the potential to disrupt programs that are already in place because you're going to hear me say some things that a lot of other people have already said.
		Our biggest problem with this rule is the prohibition of the zero-tolerance policy.  A lot of our members do have zero-tolerance policies, and they, therefore, think that this rule would make their mines less safe rather than safer.
		Those operators that have chosen a zero-tolerance policy believe that it's important to make it clear that miners found to be under the influence of drugs, as a result of a random or accident-related test, will be terminated, and that is, in fact, what they do.
		They believe that a policy like this sends a message that no miner can take his chances, or remain in denial, until a first positive test comes along, and, in fact, we think that it encourages miners with a drug or alcohol problem to seek help before failing the test but can't wait.
		But as existent in your proposal, the companies that have a zero-tolerance policy do also have what some of them call an "amnesty program," in which if someone voluntarily comes forward with a drug or alcohol problem, they are referred to treatment, and there are no negative consequences if they complete it.  Everybody is in favor of that idea because that's the kind of consensus that we want.
		Again, the concern is that we think that the way this rule is set up sets the incentives wrong.  It doesn't give a strong enough incentive to seek voluntarily help because the person knows, "Well, if the random test happens, and I fail it, well, at least I'll have a chance to get treatment then."  We don't think that's a strong enough incentive.
		So that's the concern, and MSHA really shouldn't require operators who already have a strong drug and alcohol policy to replace them with less-stringent rules, and that doesn't enhance safety.
		The second concern that we have, in general, is that some of the elements of the proposal unduly restrict the flexibility of operators to craft a program that will fit the needs of their own operations, and we give more examples of these -- some of them are fairly specific -- in our written comments that I'll talk about.
		One that some other people have talked about also, and that is the use of these instant or screening drug tests on site.  We have a number of members who are doing this.  They use a little cup for a urine sample or an oral swab, and specifically what they do, and this is generally in connection with accident-related testing.
		So the accident occurs, the workers whose actions may potentially have caused the accident are brought in and given the screening test.  If the test is negative, then they return to work.  If the test is positive, then they are referred for the comprehensive testing, according to DOT protocols.
		For a lot of our members that are in remote locations, that involves sending the person to an off-site location for drug testing or to a hospital, maybe  a medical facility.  A lot of them are relatively small, and they don't have that kind of operations on site.  So they have to send the person off, and the disruption in work, of course, is significant.
		If a negative test can be obtained quickly, then there is no onus on the worker anymore, and there is no more disruption of work.
		That's something that, at least, MSHA ought to be looking at, looking at the efficacy of those kinds of tests, to see what makes sense.
		Those that are doing random drug testing, usually they have some outside entity come and perform those, so the sort of type of testing that they do for random drug test, they don't have the capacity to do that for accident related.  They would have to go to someplace also.
		So, again, other people have mentioned other types of testing as well.  We think MSHA should take a look at those and see whether they can fit into an effective program.
		One last thing that I'll mention that a couple of other people have talked about is the question of contractor employees.  This is always a difficult issue, and I don't think it's currently addressed accurately in the rule.  I think it's been made clear that contractor employees who are miners who require comprehensive miner training are covered by the rule, but it's still not clear exactly who has to do what when.
		For example, if the contractor employees are on a mine site doing work on a day that the random drug testing for the facility is done, may they be included in that random testing, or must they be randomly tested by their own employers, and if they are randomly tested by their own employers, what can the mine operator do to ensure that this has been done.  Is it enough to have a contract or a statement from the contractor employer?
		This is a constant issue, and I think it's a more difficult one here because we're talking about actions that might have occurred off this mine operator's site.  So, obviously, the concern is that the mine operator doesn't want to have a problem with a positive drug test of somebody else's employee.
		So, again, that's something that needs to be clarified as to who has these responsibilities, and when do they kick in?
		As I mentioned, we'll also submit detailed written comments, but I would be happy to answer any questions that you might have.
		MS. SILVEY:  I just have a couple, and the first one is, your program that you all have for your member companies -- I'm now talking about for the member companies -- generally speaking, what types of testing do they have?  I know that they are probably not all the same.
		MR. PRILLAMAN:  Some of them are doing a panel, which is basically the same as what you have.  Generally, what they are doing is they are either doing the DOT panels of five panels, or they are doing a broader panel that's offered by some testing entity.  It's probably generally more or less the same as the one that you have here, but, basically, they are hiring outside testing companies, and some of them offer a slightly different panel.
		MS. SILVEY:  That shows you how terminology is here.  It's so important with terminology.  Thank you.  I appreciate you saying that because what I was getting at was, when do they test?  Let me rephrase it, then.  That's really what I was getting at.
		MR. PRILLAMAN:  Again, that varies --
		MS. SILVEY:  That probably varies, too.
		MR. PRILLAMAN:  Several of the companies have random testing, and I can't quote you the percentages, but 10 percent of those that are doing random testing.  They virtually all are doing prehire testing, and a lot of them are doing -- I think just about all of them are doing -- accident testing, and that also varies.  Some of them do it only for more serious accidents, and others do it very broad.  They are doing drug testing for near misses and things like that.
		So that's another example where we wouldn't want you to put out a rule that would restrict what people are doing in that regard.  If somebody wants to go do incident-related testing for near misses, we think that they should be allowed to do that.
		MS. SILVEY:  Well, you said you were going to provide your comments before the comment period closed, so I would encourage you to be as specific in your comments with respect to areas where they disagree with the proposed rule.
		Does anybody else have comments?  Does anybody have comments?
		(No response.)
		MS. SILVEY:  Our next speaker will be Ralph Sanich, who is with Inter West Mining Company, and that's here in the DC location.
		MR. SANICH:  Good afternoon, my name is Ralph Sanich, S-A-N-I-C-H, I'm the Health and Safety manager for Inter West Mining Company located in Salt Lake City.  Ladies and gentlemen, Inter West Mining Company appreciates the opportunity to comment on this proposed rule.
		The company firmly believes that if this rule goes into effect as written it will result in a reduction of safety.  Many coal companies, including Inter West Mining Company and its subsidiaries, have comprehensive substance abuse programs already in place.  Other companies, including our company, have established programs developed in conjunction with their individual organized workforce, which in some cases may include the United Mine Workers, Operating Engineers, et cetera.
		Our program covers all employees who are involved in accidents, property damage, et cetera, and it does not discriminate by using wording like safety sensitive job duties.  The company believes that all jobs involved with mining are safety sensitive.
		It is hoped that the Mine Safety and Health Administration would view mining companies with programs currently in place to be in compliance with the proposed alcohol and drug free mines policy/proposed rule and allow us to follow our program guidelines rather than take a step backwards and weaken our existing drug and alcohol programs.
		The company would like to stress to MSHA that in the preamble under Subpart C, Section 66.200, Purpose and Scope, it states:  "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 (we would suggest substituting that that is all employees and remove, "that perform safety sensitive jobs") and their supervisors and referrals to assistance for miners who violate the policy."
		This is simple, and companies that have these elements in place as part of their existing substance abuse program should be considered compliant and allowed to administer their existing program.  The following are questions specifically requested by MSHA that we've addressed.
		MSHA requests comments about the determination of who performs safety sensitive job duties.  Inter West Mining Company believes that all jobs on mine sites are safety sensitive jobs, which is why all employees are required to undergo safety training.  The proposed rule states that safety sensitive job duties are any type of work activity where a momentary lapse of critical concentration could result in an incident, injury or death.
		Mine accident history would suggest that all jobs are not immune from an accident.  It is the company's position that substance abuse programs should apply to all employees and not a subset of employees.  Applying the substance abuse testing across the board is a more consistent approach to ensuring a drug free, alcohol free work environment.
		MSHA requests comments about experiences and concerns about the use of such substances as prescribed medications in mining.  Inter West Mining Company believes that abuse of prescription medication is a big problem throughout the country and not just in mining.  A doctor should verify that a miner utilizing prescription medications can engage in normal, safe work activity while taking the prescribed medications.
		The company should be notified by the employee that he or she is taking prescribed medication prior to starting work duty.  There should also be a statement from the company about abuse of prescribed medications, i.e., taking more than the prescribed dosage.  If a dosage is exceeded, the employee should be subject to the same criteria as positive tests for substance abuse outlined in the policy.
		MSHA seeks comments on the list of drugs specifically identified as prohibited substances.  Inter West Mining Company believes that the drugs of concern have been identified; however, the company recommends that companies have flexibility to adjust or add additional drugs to their programs if they could be subject to abuse.
		It is critical that a qualified medical review officer review screens and has the opportunity to contact individuals and ask questions regarding the use of certain drugs, including prescription medication.
		MSHA invites comments on written policy, how it should be provided to miners.  Again, Inter West Mining Company believes that this communication of the substance abuse program should be left up to the employers or the individual mining companies.  They may choose to send it to their employees in the mail, they could hand it out during training sessions, they could post it on official bulletin boards, et cetera.
		MSHA invites comments about the amount and type of training for nonsupervisory miners.  Inter West Mining Company believes that the training for nonsupervisory miners can be conducted in several ways.  For example, human resource personnel familiar with the policy could conduct training for nonsupervisory employees during normal work hours and at scheduled safety meetings.
		Training could also be performed by offering online courses, holding training sessions conducted by a knowledgeable supervisor or contract employees such as a medical review officer or a substance abuse professional.  This training would consist of teaching employees how to recognize and apply certain behaviors, the effects of drugs in the workplace and how to follow the policy as is most appropriate for employees and circumstances.
		MSHA seeks comments on who should receive reasonable suspicion training.  Inter West Mining Company believes all management employees and working foremen/spell bosses who supervise employees (hourly and management) should receive reasonable suspicion training.
		MSHA seeks comments on the provision to encourage, but not require, miners to voluntarily seek assistance.  Inter West Mining Company agrees that it is appropriate to encourage assistance for substance abuse.  Those companies that have substance abuse programs in place should be allowed to follow their processes so long as the programs meet and contain the fundamental elements proposed by MSHA.
		If an employee voluntarily seeks assistance, this would allow them to qualify for a one time rehabilitation program.  The very best incentive for the individuals to complete rehabilitation is having their job on the line.
		MSHA seeks comments about the extent of third-party health benefits.  Inter West Mining Company believes that providing healthcare coverage to cover costs of substance abuse treatment for employees is appropriate and the right response.
		MSHA invites comments about the circumstances under which testing is warranted.  We believe that mandatory substance abuse testing is appropriate for the following circumstances:  preemployment; postaccident; reasonable suspicion; and random testing.  We've suggested and in our case one of our properties has a minimum of 33 percent of its workforce annually.
		MSHA invites comments about proposed preemployment alcohol and drug testing provisions.  Inter West Mining Company agrees that preemployment alcohol and drug testing should be mandatory.  If a person has a positive test result, this would eliminate the person from consideration for employment.
		MSHA invites comments about the floor rate at which random testing would be conducted.  As stated earlier, Inter West Mining believes that that rate should be a minimum of 33 percent.  It is also recommended that an outside third party make the selection rather than completing them internally to insure credibility of the random process.
		MSHA welcomes comments on how the drug and alcohol testing results should be documented in accident reports.  Inter West Mining Company believes that all injury accidents require substance testing along with a recommendation that there be an indication on the accident report that the drug screen was completed.
		MSHA invites comments as to the appropriate means for enforcing the provisions of this proposed rule.  Inter West Mining Company disagrees that it is necessary for MSHA to enforce its drug and alcohol program on mining companies.  Companies that have been proactive and have programs in place already have consequences for failure to comply with the program provisions built into their programs.
		MSHA is interested in learning about mine operators who already test for additional substances about their experiences differentiating legitimate from unauthorized use and for detail with discovery of use of substances.  Inter West Mining Company believes the key to this determination is having qualified and certified medical review officers that can independently talk with the employees and ask the questions needed to determine the authorized or unauthorized use of substances.
		MSHA invites comments about the provisions of what action the mine operators must take upon receiving alcohol and drug test results.  We believe that two areas need to be addressed.  First, the process needs to be treated confidentially and only necessary individuals involved.  This would help to ensure employee confidentiality is maintained.  Secondly, actions, if any, also need to occur as quickly as possible.
		MSHA invites comments on inclusion of SAP functions with EAPs.  Inter West Mining Company feels that the substance abuse program cannot properly function without an employee assistance program in place.
		MSHA 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 a SAP in recommending treatment.  Inter West Mining Company believes that the key element is providing all employees a safe work environment.
		If someone is impaired or unable to perform work safely, they need to be removed from the work environment.  Consequences beyond removal would be determined by the company's alcohol and drug program.
		MSHA invites comments about the provision of returning to duty and follow-up testing.  Inter West Mining believes that follow-up testing should be mandatory and a key component to a successful substance abuse program.  A person who has tested positive for a tested substance and has violated the substance abuse policy must be held to a higher standard of performance and expectations to justify their return to work.
		With the individual's job on the line, this is the very best deterrent.  The employee needs to understand that there are consequences to every future violation.
		The agency solicits comments about what records would need to be kept and for how long a period of time.  Inter West Mining believes that positive substance test results should be kept in the employee's personnel file for the length of time identified in the existing substance abuse program.
		Some companies will have programs that were developed as part of the labor agreement.  The company believes these records should not be open to inspectors during quarterly inspections if they are to be kept by the mine operators.  MSHA must remember that these files are sensitive and restricted.
		MSHA invites comments about how best to reflect postaccident test results in required reports following both fatal and nonfatal accidents.  Inter West Mining Company believes this should be handled through the company's human resources department.  Any public accident investigation results should be communicated through the company's legal department.
		A company's legal department can best determine how to reflect postaccident test results for serious injury accidents and protect the company from potential legal challenges.
		Again, on behalf of Inter West Mining Company, I'd like to thank MSHA for consideration of our comments.
		MS. SILVEY:  Anybody have any comments or questions?  Okay.  Thank you.
		MS. CARR:  Appreciate your comments.  Just want to make one clarifying statement.  One of your suggestions to Comment No. 3 was that there should be flexibility to add or adjust additional drugs to the program.  Although it wasn't specified in the rule text, in the preamble we did clearly state that nothing in this rule prohibits employers from testing for additional drugs and even using the same sample.
		MS. SILVEY:  Thank you.
		MR. SANICH:  Thank you.
		MS. SILVEY:  Next we will have William Rayburn with Iluka Resources Inc.
		MR. RAYBURN:  Go here?
		MS. SILVEY:  Yes.
		MR. RAYBURN:  Thank you.
		MS. SILVEY:  Is that you?
		MR. RAYBURN:  Yes, ma'am.
		MS. SILVEY:  Okay.  Is that right, Iluka?
		MR. RAYBURN:  Iluka Resources.
		MS. SILVEY:  Iluka Resources Inc.  Okay.
		MR. RAYBURN:  My name is William Rayburn.  I'm the EHS Supervisor with Iluka Resources, the Mineral Sands Mining Company operations in Virginia and Florida.  I'm also the Chairman of the Safety and Health Committee for the Virginia Transportation and Construction Alliance.  It's an industry trade association representing 350 construction companies and mining companies in Virginia.
		Iluka wishes to thank MSHA for the opportunity to be here today and to speak on this.  We support the intent of the proposed rule, which is to make the mining environment a safer environment.  We agree that there is a problem with alcohol and drugs in America.  It's unrealistic to think that that doesn't happen on mine property also.
		However, we feel the rule should be all inclusive for the United States Department of Labor and not only mining.  Contractors frequently travel between OSHA and MSHA sites.  Construction companies, especially contractors, crane companies.  It's unrealistic to think that a company that's doing a DOT required testing now, if your proposed rule is implemented, they wouldn't be in compliance because they'd have to do different testing.
		That's undue burden from on those companies.  It should include all contractors under service text and anybody else working and providing services in the United States.  As written, the proposed rule is contrary to common sense, heavy industry standard safety practices.  It is unattainable, unrealistic, intrusive, burdensome.
		It will compromise safety by allowing people who are under the influence to have a get out of jail free card.  Iluka has an effective program in place.  We have for 10 years.  We test 10 percent of our employees monthly.  We were doing quarterly.  Our employees wanted to go to monthly.  It was a recommendation from our employee safety committee.
		We provide an EAP where any employee can voluntarily enter into a program.  The rule is you have to tell me that you have a problem and you want to enter that program before I tell you you need to go.  Our policy is .02 BAC, zero tolerance, including refusal to test and result alteration and we reserve the right to terminate any employee for any reason, including failing a drug test, refusing to take a drug test, falsifying a drug test.
		We do random testing, for cause testing, preplacement testing and postaccident testing.  Postaccident testing would include any property damage incident greater than $500 damage to the company property.  Any person who requires off site medical evaluation and treatment must have an alcohol and drug test.  Any for cause or suspicion, including gross negligence.
		Everyone at Iluka is considered a miner and is integral to the safety of our operation, including the secretary, the receptionist, the housekeeping staff.  Anybody employed by our company is included in that testing program.
		We do on site saliva testing, both prescreening, postaccident.  Due to the proximity of our mine site being 35 minutes away from hospitals, middle of the night, weekends, holidays, there isn't a doctor's office that's open that's available to us to do DOT testing.  We do the saliva testing as a prescreening to rule them out as a negative postaccident.
		If they go to the hospital for medical treatment, then they obviously get a test there.  There are some specific concerns Iluka has with the proposed rule.  It doesn't really define what the liability of the mine operator is or the supervisor who is going to be making the for cause or suspicion assessment of that individual.
		Is he negligent if he didn't see or recognize the person who may turn out to cause the fatality and they test positive?  Was he negligent because he didn't recognize that?  What's the mine operator's responsibility when it comes to testing of people when they have an accident?  The fact that they had an accident, they test positive, is the mine operator then negligent?
		There's significant problems with access to the proposed testing methodology due to location, time of day or week.  The emergency room is our only place to get testing done.  We all know that there's a problem with healthcare in America and having an emergency room clogged up with people getting their drug tests because they had an accident but weren't hurt.  Kind of ridiculous.
		Applicability between contractors and vendors on mine property, whether they need Part 46 or Part 48 training or not.  A one time specialty contractor is frequently doing high risk work on the mine site.  He exposes my employees to hazards, but yet, he's not covered in this rule.
		Training some of the supervisors is difficult with human resources issues to begin with.  There are people who have trouble handling the personnel side of being a supervisor of people.  Some people simply can't do it.  This is an increased ability on those individuals when they're struggling with the comfortability level.
		They're good at their job, they know what they're doing and they can help their people, but now they're going to be expected to recognize these situations with two hours of training.  A police officer who does field sobriety tests goes through an extensive training program.  Two hours is unrealistic to think somebody's going to be able to do that.
		Contractor employees test positive.  Can the mine operator ban them from the site under the proposed rule?  If he tests positive, he gets his rehabilitation, is the mine operator allowed to ban him from the property?  Our current rule is anybody who tests positive is gone.
		The liability on the mine operator for the contractor compliance.  We have a process that every contractor who works on our property must do an EHS prequalification package.  It's reviewed by myself and my staff, including our purchasing people.  We review their OSHA record, their MSHA record, the Department of Mines, Mineral and Energy record for the State of Virginia, DEQ, EPA records.
		We don't want unfit contractors working on our site.  We want to verify that they have the correct insurance.  I already have to take care of their training.  If we do training to make sure they're taking care of the training that's required for hazards they're going to be exposed to, now do I have to review their drug and alcohol program and ensure they're enforcing it and complying it?
		In their noncompliance if I know we got a problem.  Do I have to take them off site now?  MSHA frequently writes dual citations to mine operation contractors.  That's the situation if this would occur.  MSHA can't say they won't write the operator a citation if they have knowledge or don't do due diligence for a rule that's proposed and implemented.
		It's not company notice if they're not doing the drug and alcohol testing.  We're talking small mom and pop companies having to do all this.  Iluka also feels that MSHA has drastically underestimated the cost of implementation and maintenance of this rule.  Just sitting here today listening to people talk I came up with quite a few things that are going to add significant costs to our operation.
		Cost of the mandatory rehabilitation born by the company under the proposed rule.  Training:  two hours supervisors initially, one hour for supervisors annually, one hour for all other employees, a half hour for refresher.  The number of tests to be conducted for the proposed rules.  Somebody tests positive, you bring them back, you've got a significant increased number of tests.
		We've already discussed the problem with having access to appropriate testing facilities.  Type of test.  We currently do a five panel.  Proposed rule is a 10 panel.  We use saliva.  The proposed rule is based on the DOT.  Our random testing is DOT approved urine and breath alcohol.  That's done through a third-party consultant providing the services.  It's not cheap because we're a long way away from them.
		Mandated labs for the urine instead of the on site rapid testing draw.  That includes the postage to get stuff to the lab.  Mandated miner removal from work.  Somebody's got to transport him if he has to go get a DOT test.  He's got to be transported by a company employee who is then left aside.
		We frequently have four or five people on a shift.  Nights and weekends, two of the people leave, that would compromise production and safety of the other people there.  Increased costs passed on to the mine operators when hiring contractors because the contractors are going to directly pass this cost on to the mine operator, so our cost of hiring contractors just went up.
		Logistics and requirements for paperwork, data management, recordkeeping; lost time while conducting the testing; increased time required by the operator and the medical review officer verifying prescriptions; putting miners in alternative jobs.  We have to pay them and then pay someone else to do their regular production work.
		Suppose an operator doesn't have alternative duty?  Some places don't have light-duty for medical injuries, but yet, we're going to have create a job for them and pay them to do it.  Contracting is SAP, additional nonoperative costs.  We already have a EAP, but if the EAP doesn't perform the functions of the SAP, that's an additional cost.
		Those are just the ones I've come up with sitting here today.  So Iluka supports MSHA's intent and its efforts, and we thank you for allowing us to speak today.  If you have any questions about our testing program and what we do, I'd be happy to answer them.
		MS. SILVEY:  Thank you.  I assume, and I'm making an assumption here, that your program that you have when you talk about the on site saliva testing that you're probably using, you did say you did it as a screen, but are you using the FDA test method, too?
		MR. RAYBURN:  Yes, ma'am.  It's also approved by our medical review officer who is a Board certified occupational physician.
		MS. SILVEY:  Okay.  Right.  Okay.  The only other comment I have is with respect to the places where you said we underestimated the cost and you talked about six areas I think.  Are you going to provide additional comments?
		MR. RAYBURN:  Yes, ma'am.
		MS. SILVEY:  Well, I can ask you to anyway.  I was going to say, if you would in your additional comments provide specifics in the area to the extent that you can.  I say this for everybody.  When we ask you if you would provide statistics, that's obviously always limited by your ability to do so.
		If you can, when you say that we underestimated the cost, if you would provide specific information in the areas where you think we underestimated the cost, and by how much that we underestimated costs, of you can do that.
		MR. RAYBURN:  Well, I can tell you that our saliva drug test of drug and alcohol is $26.
		MS. SILVEY:  Yes.  So that's what I'm talking about.  If you can provide specific data, we'd appreciate that.
		MR. RAYBURN:  Okay.
		MS. SILVEY:  Just let me go off the record here one minute.
		(Discussion held off the record.)
		MS. SILVEY:  Anybody else have any comment for Mr. Rayburn?  Okay.  Thank you.  We look forward to your additional comments.  We will now have Sam Hollins with the Virginia Transportation Construction Alliance.
		MR. HOLLINS:  Appreciate your letting us bump me up a little bit there.
		MS. SILVEY:  Okay.
		MR. HOLLINS:  Good afternoon, panel.  As she mentioned, I am Sam Hollins, H-O-L-L-I-N-S, and I do work with Virginia Transportation Construction Alliance, a state trade association that represents the interests of the mining industry, metal and nonmetal.  I do appreciate the opportunity to speak today.
		I would like to say that members of the VTCA do support obviously an alcohol and drug free workplace, and we applaud MSHA's attempt to craft a plan to achieve that end.  However, as we exist right now, the majority of the companies that are members in Virginia do have comprehensive plans in place that we feel were under risk of being undermined if the current proposal passes and moves forward in its current state.
		Therefore, as it stands right now, we cannot afford to support the proposed rule.  I would like to take just a moment or two to reiterate, and I apologize for reiterating many of the comments that have been made today already, but I feel that on behalf of our members in Virginia we need to go on record and share in some of that concern as well.
		Jack voiced some of those concerns just now with Iluka, but I would like just to mention a few, if I could.  One of them, in the area of training we have questions regarding training in a couple of different areas, obviously one of them being the amount of initial training, as well as annual refresher training, that is involved.  That's been noted a number of times today.
		We also have concerns regarding the role of the supervisor, certainly concerning reasonable suspicion testing.  We question that with the training that would be implemented for supervisors, we question whether they would be readily able to identify who is under the influence of drugs.
		As was mentioned earlier, I think this carries with it as well the risk of liability when you have a work environment where persons may be operating under the influence of alcohol or drugs not detected by supervisors.  I think there would be quite a bit of consternation on the part of the supervisory personnel that are placed in that position to carry that burden and the potential risk of personal liability if something is to happen.
		In the area of testing I'd like to make just a few comments, if I could.  There are concerns we have, one of which is regarding the postaccident testing.  I believe now they call for the eight hour window for alcohol testing.  I believe following that eight hour rule that would bring into question the validity of those results.
		I'm also in law enforcement and I know that the essence is always on time when you're trying to get your testing done with regard to alcohol testing, but that the values can change significantly over an eight hour period, so it may be a point that we may need to reconsider the eight hour period.
		Also, we obviously would like to see it modified to the extent where we could utilize the various methods of testing -- again, I know that's been mentioned earlier today as well -- beyond the kinds of testing that's stated in the rules as they stand right now.  We agree with but question the frequency of follow-up testing.  We certainly agree with when employees come back into the workforce that follow-up testing is necessary.
		We're just not sure that the six and 12 month is the adequate way to go.  I don't have an adequate number right now.  We're just not sure that six and 12 months is the way that we would need to go with that.
		Finally, regarding testing, again, as has been shared many times today, we feel that the testing should be applicable to employees, miners of the operation, as anyone at a mining site can be subjected, either themselves or others, to significant risk of accidents or hazards.  So we feel that everyone should be able to be tested.
		Next point, regarding 66400, consequences to miners for failing an alcohol or drug test.  It appears in the way it's written right now that, as we stated, the burden in a way seems to fall mostly, if not completely, on the company and really not on the miner themselves.
		We're feeling that there should be some consequence or penalty attached to the individual miner as well, whether it be in the form of some type of monetary assessment for failing, including the possibility of being responsible for the cost of the follow-up testing as well.
		If you think about it, the logic of this, if you're Johnny in school and you get caught cheating and the teacher gets expelled from school, I don't know that that makes a lot of sense.  I don't know that the student has much of an incentive to worry about getting caught cheating.  So I do believe that we need to consider putting more of the burden or some of the burden on to the individual as well.
		I believe the more buy in that you have, more consequences you attach to that, the better chance of success you'll have if that person is held more accountable.  Then finally, and probably the biggest cause for concern, and again, this has been shared many times today, would be 66405 where it states to the return to duty.
		I believe it states that offenders may not be discharged for the first offense.  I'd like to say along those lines that the majority of our companies currently have excellent EAP, employee assistance programs, that offer full assistance for those who come forth prior to being caught, if you will.
		I've spoken with many of our members and they all echo the same concerns and policy statements that they have, and that is that they offer that assistance whole-heartedly to those who will come forward and ask for that help.  However, as it's written now, we do believe that it handcuffs the operators with respect to their current disciplinary policies of which most of them follow zero tolerance policies.
		If I could borrow from the preamble, that entry as posted, I believe it speaks at one point to one of the commenters that had stated that in these operations they operate expensive equipment and dangerous equipment on a routine basis and the use of drugs and alcohol can severely impact an individual's judgment and put coworkers and equipment at risk.
		We couldn't agree more with that statement, and in fact believe that statement points directly to our contention that we do need to be allowed to implement the policies that we see as fit to successfully implement a drug free and alcohol free environment.
		If we have a drunk driver that goes down the highway and kills someone, I would suspect we would all be appalled if we decided just to send that person to a driving school and then put him back out on the road and have him drive again with no consequences to him.
		So I think that we're in a serious environment and a dangerous environment, and I think we need to be able to have that carrot and stick, if you will, that puts that consequence out there initially for the miners to be concerned with.
		I'd have to ask you, madam, if we have a speed limit and we tell you to post a speed limit of 65 but if you get caught speeding over that first time we're just going to, you know, we'll let you go, maybe send you to driving school, I question him if he would abide by the 65 mile an hour speed limit.  So it's of great concern that we think that our policies are being undermined if this moves forward.
		So in conclusion, I would just like to again commend MSHA and Department of Labor for the work that they're trying to do to create an alcohol and drug free workplace.  We do support that cause.  We will be following up with comments prior to the October 29 deadline, our association will be.
		MS. SILVEY:  Okay.  We appreciate that, particularly in the areas where you said you didn't have a definitive, like number or something or whatever for something we proposed, so before the record closes, if you would share it with us.
		MR. HOLLINS:  We'll try to share that with you.
		MS. SILVEY:  One of the things I do want to, one comment that I would say to you and to everybody who is listening with respect to, you said most of the burden falls on the company and that, you know, your recommendation is that it should be some consequential, I wrote down, penalty for the miner, one of the things I would say to everybody, and I know people who have been working in the mining industry now for, clearly the ones who have been working for as long as I have in the mining industry, know that they are very familiar with the construct of the Miner Act.
		The Miner Act provides the responsibility on the mine operator when it comes to the penalty.  There's only one exception to that and that's with respect to the smoking penalty.
		MR. HOLLINS:  Correct.
		MS. SILVEY:  That's a shorthand way of my saying to you that the way the Miner Act is presently structured, the agency couldn't do that.  So I can say that to you right now and for everybody else who is within the sound of my voice.
		MR. HOLLINS:  Thanks for sharing that.
		MS. SILVEY:  Okay.  All right.  Thank you very much.
		MR. HOLLINS:  Thank you.
		MS. SILVEY:  Did you all have anything?  Okay.  We need to switch to our Pittsburgh location now, please.  Our next speaker is John Gallick with Foundation Coal.
		MR. GALLICK:  I'm actually back here.
		MS. SILVEY:  Yes.  I saw you.  I'm sorry.  I did.  I knew I saw you.  I'm sorry.
		MR. GALLICK:  I can go on the record and say I wish I was in Pittsburgh.
		MS. SILVEY:  I know, I know.  John Gallick, Foundation Coal.
		MR. GALLICK:  Hello, my name is John M. Gallick, G-A-L-L-I-C-K, I'm Vice President of Safety and Health, Foundation Coal Corporation.  Foundation Coal and its affiliates operate mines in Pennsylvania, West Virginia and Wyoming.  Affiliates involved include smaller underground operations, large, long wall operations, small surface operations and large surface operations.
		Based on production, Foundation Coal and its affiliates are ranked as the fourth largest coal mining operator in the country.  First, as a member of the National Mining Association, Foundation Coal supports NMA's earlier testimony.  Let me commend the agency for attempting to go forward with the proposed rules to address the issue of drugs and alcohol in the mining industry.
		This issue has been a concern to me and others.  Drug and alcohol testing is simply another tool for the industry's safety toolbox.  Let me also state that all of our affiliates have drug and alcohol testing policies in place.  Some of the policies have been in effect for a long period of time and others have been relatively recently implemented.
		Enforcing a drug and alcohol program has, in my opinion, added another tool to the safety toolbox with these operations.  Each of these tools in these toolboxes make each of these operations safer.  Like all proposed rules, I have some issues with specific language that I would like to discuss further with you.
		Before I detail these concerns I'd like to quote from part of my public testimony on October 26, 2005 in St. Louis.  This is a quote.  "Those of you who know me know that I am not a believer in excessive regulations.  I've testified numerous times in public hearings and this is the first time that I've actually requested a regulation."
		"I do think this issue requires a simply stated regulation.  I believe the regulation should simply require each operator and each contractor doing mining business to establish a drug and alcohol testing program that includes preemployment testing and random testing following nationally accepted protocol guidelines."
		"The regulations should not detail the types of testing, assumptions to be tested or actions to be taken on positive tests.  The operator should be responsible to develop the plan and the action to be taken on positive tests."
		"MSHA's role in this regulation would be threefold.  First, to ensure that a testing program is in place; second, to provide training and education materials; and third, to provide an updated drug testing website that will provide information to the operators on the latest testing systems, adulterants being used and the results of the data collected on testing programs and outcomes."
		"If the successes and failures are not tracked and reported to the industry, then the value of the program and the need to modify it over time will not be clear."  I'd further commented that, "Clearly, any attempt to develop a regulation with prescriptive requirements would actually hinder drug and alcohol programs that have been developed by companies."
		"The basic goal in developing a regulation should be to bring at least a minimum testing program and all reparations and for all contractors."  Nothing in the intervening years has changed much of my opinion on the subject.
		I still believe that a regulation requiring drug and alcohol testing is needed, I still believe that a program needs to be performance driven, and I still believe that MSHA should not be involved in prescriptively regulating an operator's actions after a positive test.  For the record, I will submit additional written comments, including answering your questions, and I will include my 2005 comments as an attachment to that record.
		I will now address some of the specifics in the proposed rule.  Alcohol in an unopened container in a personal vehicle should not be considered a violation.  Further, "on and around mine property" should be marked by the state, "on mine property".  66.200.  The final portion of this section needs omitted, and this part is what I'm referring to, "and referrals for assistance for miners who violate this rule".
		The Agency should not insert oneself into a labor relations issue.  I will discuss this in more detail in my comments under Section E of this proposed regulation.  Both 66.202 and 66.203, my comments.
		While I do not object to training, I question the need for prescriptive time limits listed in these sections of Part 66.  The rules should be performance oriented and not list artificial classroom time limits.  I believe Ms. Silvey and I agree on that, that it should be performance related rather than prescriptive, although this rule, for some reason, has prescriptive standards in it.
		66.204.  This section of the proposed regulation is a powerful driver for the drug-and-alcohol-free workplace.  Foundation Coal and its affiliates provide a comprehensive employee-assistance program to help support employees and their eligible dependents who seek help.
		Clearly, a person who voluntary seeks help for a problem has an appropriate motivation.  Seeking help before running afoul of the company's drug and alcohol policy should be encouraged by all parties.  Unfortunately, Section E, as it is now written, interferes with plans that are designed to reward voluntary requests for assistance.
		66.400(b).  This subsection should be deleted entirely, as it is a clear interference in the operator's rights to manage a mine and establish labor relations provisions.
		Further, eliminating the operator's right to terminate an employee who violates a company drug and alcohol policy potentially creates an unsafe work environment.  Where there is no incentive to seek treatment voluntary, an employee will likely continue working, recognizing that the system is now minus a first-strike penalty.
		First, I would like to reemphasize the comments I made concerning 66.204.  Foundation Coal and its affiliates will, and do, provide EAP services to any employee who voluntarily seeks help.  The problem with the rule, as written, is that rather than reward an employee who seeks help voluntarily, the rule provides for a guaranteed second chance.  The employee who voluntarily seeks help, knowing that no penalty is forthcoming, will be rare.  Sometimes the threat of potential punishment is enough for a person to ask for help.
		A problem worker will recognize that there is no advantage for him to seek help voluntarily since the first strike drug or alcohol test failure, whether it be a for-cause test, a random test, or as a result of testing during a first accident, will not result in his potential job loss or any other punishment, for that matter.
		Second, each operator has his own disciplinary programs.  These programs are more encompassing than just drug and alcohol abuse.  It is inappropriate for the agency to insert itself into any portion of management-worker labor relations.  It is the responsibility of each operation to set up its policies, including discipline.
		Thirdly, page 52142 in the third column of the preamble, restates a position well known to all of us and one that you just quoted, and I quote:  "MSHA recognizes that the overall responsibility for mine safety rests with the mine operators."
		It is illogical for MSHA to interfere with the level of discipline that an operator deems appropriate for an offense.  The operator-MSHA relationship has always been one where noncertified employee disciplinary action for safety and regulatory compliance actions were strictly under the purview of the operator.  This system has worked, and this regulation interferes with that system.
		If MSHA's proposed rule were implemented, it would render ineffective every substance abuse program Foundation Coal and its affiliates currently have in place.
		Finally, I would like to thank the agency for addressing this serious issue.  I may sound as if I oppose your efforts, but I truly applaud them.
		What I ask is for the agency to review the National Mining association's rewrite of Section 66.  This rewrite provides specific changes to the proposed rule.  Most of the rewrite supports the intent of the agency's proposed rule.  Thank you for your time today.
		MS. SILVEY:  Thank you.  I only have one comment here, and it's not a question.  As I've said to other people, if you feel like adding specific comments to us before the record closes on the 29th, feel free to do so.
		I have one comment for everybody who can hear me, and, again this goes to everybody, because I probably should have said it earlier.
		The phrase that's in the preamble, and I would like to tell people I have my learned counsel back here to keep me straight, so she can kick me if I'm saying the wrong thing, but the phrase in the preamble, and wherever else it is, that says "on or around mine property," I would like to clarify for everybody because, again, those of you who have been working in the mining industry know that MSHA's jurisdiction goes to all mine properties.  I don't think that's me saying anything that I can't say to you.
		MS. HONOR:  That's correct, and I think that that language came from the existing rule, and it's one of the provisions that we know requires some clarification.
		MS. SILVEY:  Some clarification.  That's a good point.  I almost forgot that, Jennifer.  The -- standard probably says that, but, clearly, we all know that MSHA's jurisdiction is on mine property, just so everybody knows that.
		Okay.  Next, we -- I'm sorry.  I didn't ask my panel here, did they have any comments.  You can tell, we've got a lot of people left here today.
		MS. CARR:  You used the term that you thought mine operators should be left to have their programs use nationally accepted protocols and guidelines.  Are you talking about any specific guidelines and protocols, given that the Department of Transportation and SAMHSA guidelines only apply to the five drugs for which they test and for urine testing?
		MR. GALLICK:  That little quote was from my 2005 testimony, and, at that time, I wasn't sure if there was a notice of policy from MSHA just to discuss in general the need for a proposed rule.
		So what I was saying in that quote from 2005 was MSHA should limit itself to establishing whatever the proposed protocol is.  It should limit itself and stay out of how we handle positive samples, stay out of the labor relations side, and make it simple, basically, just requiring us to do -- every operator and contractor have a program.
		I only said, actually, two parts of that program, preemployment and random, and I said, at that time, I'll worry about the accident stuff myself -- it's my own company -- rather than getting into a dispute with every inspector on how I handle that side of the business.
		Obviously, that's been added to this program, and we will support it, and we will comply with it, but whatever the protocols that I was referring to was just a general statement.
		MS. CARR:  General.  So you weren't talking specifically about drug testing protocols and guidelines.
		MR. GALLICK:  No.  Like everyone else, we do 10 different drugs, and we have, in our programs, urine, saliva, and hair.  I don't believe we're doing any hair testing at this point, although we have some standards for it.
		MS. SILVEY:  But if you do saliva -- excuse me for interrupting -- if you do saliva, I assume you'll do it in accordance with FDA, just like -- now I'm getting the picture.
		MR. GALLICK:  That's right.
		MS. SILVEY:  Okay.  All right.  And I assume that if you did hair also, it would be FDA.
		MR. GALLICK:  Right.  I don't believe we're doing any now.
		MS. SILVEY:  Okay.
		MR. GALLICK:  When I say that, we did have it in for potential preemployment for a longer-term look at the drug and alcohol problem.
		MS. SILVEY:  Okay.  Anybody else?  Okay.  I'm asking everybody who can hear me, if you would please bear with me.  I'm going to take about a five-minute break.  I would say "five minutes," but the next couple of people I have might take longer than five minutes, so I can't say.  But in a few minutes, I'm going to take a small break.
		We do have to continue, and so I'm just asking everybody to please bear with us.
		The next speaker we have is Dawn Dregier with SAP Referral Services.
		MS. DREGIER:  Thank you.  Again, my name is Dawn Dregier, D-R-E-G-I-E-R, and I represent a company by the name of SRS.  SRS is a national network of substance abuse professionals who specialize in performing evaluations and case-management services currently for the Department of Transportation's mandated employees.
		Today, I'm here to speak about SAP credentials and SAP versus EAP, as addressed in Section 66.404 of the proposed rules.
		We would like to encourage MSHA to review and adopt for the mining industry the same credential requirements that the Department of Transportation set forth.  These requirements specify that a clinician be licensed as a psychologist, a social worker, a marriage-and-family therapist, a SEEP, or a drug and alcohol counselor with international certification.
		The DOT also requires that clinicians undergo specific training testing that outlines rules for performing assessments, making recommendations for treatment, compliance monitoring, employer reporting, return to duty, and follow-up testing.
		As mentioned earlier today, an EAP program is compiled of clinicians who are not necessarily skilled in the area of performing substance abuse evaluations and making recommendations for treatment or return to duty for safety-sensitive employees, and that's a concern of ours.
		The SAP program, however, is a program that is compiled solely of substance abuse professionals, and these individuals specialize in performing these evaluations, making the recommendations.  They are utilized primarily by companies who have employees who have either self-disclosed a substance abuse problem or have tested positive for drugs and alcohol.
		I'm here today, once again, to strongly recommend that MSHA review the recommended credentials that DOT is currently utilizing and consider mirroring those credentials because these are individuals that are releasing these employees to return to safety-sensitive employment.
		MS. SILVEY:  So, if I gather, just kind of in a nutshell, you recommend that we use SAPs, substance abuse professionals.
		MS. DREGIER:  Substance abuse professionals versus EAPs, which tend to be generalists.
		MS. SILVEY:  But, of course, you represent, and I'm not putting you on the spot or anything, but you represent substance abuse professionals.
		MS. DREGIER:  That's correct.  That's correct.
		MS. SILVEY:  Okay.  I just wanted to get it straight.
		MS. DREGIER:  Absolutely.
		MS. SILVEY:  Right.
		MS. CARR:  That is consistent with the incorporation of Part 40 into the current rules that we require SAP.  EAP is offered in the preamble as an element that can be included, but, in terms of the return to duty, only the SAP is qualified to make that recommendation for return to duty.
		MS. SILVEY:  Because we incorporated the DOT Part 40.  Okay.
		MS. DREGIER:  Now, in 66.404, I think it stated that they strongly recommended -- I believe that's the language, and I didn't bring it in with me to hand it out to you --
		MS. SILVEY:  I believe I've got it.
		(Discussion held off the record.)
		MS. DREGIER:  But just wanting to really bring home the difference between the EAP and the SAP because of safety-incentive employees, we really need someone who is qualified to make a determination whether they are eligible to return to duty.
		MS. CARR:  Just to clarify, we did recognize that, although it's important to note that EAP can perform functions, the drug-testing and reliance-monitoring function, of SAPs, it falls outside of the scope of typical EAP practice.
		MS. DREGIER:  Okay.
		MS. CARR:  I appreciate the clarification.
		MS. DREGIER:  Certainly.
		MS. CARR:  It certainly is consistent with our intent.
		MS. DREGIER:  Okay.
		MS. SILVEY:  Thank you.
		MS. DREGIER:  Thank you.
		MS. SILVEY:  Next, can we have our Beckley location?  Beckley is on now?  Is Ben Hart there to speak in Beckley?
		A PARTICIPANT:  No.  Ben is not here.
		MS. SILVEY:  Okay.  Fine.  Thank you very much.
		Moving right on, our next speaker, then, is Brian Hendrix with MARG Group.
		MR. HENDRIX:  Good afternoon.  My name is Brian Hendrix, H-E-N-D-R-I-X.  I'm here to testify on behalf of the Mining Awareness and Resources Group, or "MARG."  MARG is a coalition of metal and nonmetal companies that have long been advocates for the safety and health of their employees.
		MARG promotes regulations and policies that protect the safety and health of the workforce and the environment and enhance the viability of the mining industry.
		MARG appreciates the opportunity to comment on the proposed drug and alcohol policy ruling.  MARG endorses the overall concept of the rule.  It condemns the abuse of drugs and alcohol in the workplace while, at the same time, promoting and encouraging MSHA to promulgate a rule that addresses this very serious problem.
		Not only does drug and alcohol abuse adversely impact the lives of the users and their families; drug and alcohol abuse in the workplace puts miners at risk, reduces productivity, and is a criminal act.
		MSHA encourages the improvement of federal policy to address this problem, and MARG endorses an MSHA substance abuse regulation that does a few things.
		First, it prohibits the use of illegal drugs and alcohol in mines and is enforced across the board against all individuals who violate the rule.
		Second, we would like to see a substance abuse regulation that requires mine operators to develop a written policy on drug and alcohol abuse.
		Third, we hope that MSHA would promulgate a rule that requires mine operators to train all miners on that policy.
		MARG also endorses a rule that would provide for preemployment drug and alcohol testing for all miners broadly and random drug testing and alcohol testing for all miners, again, very broadly.
		For-cause drug and alcohol testing for all miners who are really suspected of violating the operator's policy or federal regulations.
		Post-event drug and alcohol testing for every reportable MSHA accident, injury, or illness.
		Finally, MARG endorses a rule that would require mine operators to provide information about the assistance available from substance abuse and employee-assistance programs, the EAPs and professionals, SAPs.
		However, MARG is very concerned that the text of the MSHA-proposed rule is too detailed and will interfere and conflict with the existing and highly successful programs that the MARG member companies already have in place.
		As a result, MARG suggests that MSHA adopt an alternative, performance-based rule that would allow mine operators to implement the program that works best for their workforce, community, and resources.
		MARG is particularly concerned and opposed to any regulatory provision that inhibits or interferes with an employer's right, authority, and duty to discipline an employee for violations of law or company safety and health rules, up to and including termination of employment.
		Any regulation that interferes with an employer's right, authority, and duty to discipline employees for substance abuse would undermine safety and health of this nation's miners.  As such, it would violate the Federal Mine Safety and Health Act.
		MARG's objection to mandatory second-chance rules does not imply opposition to voluntary programs that encourage confidential self-reporting of abuse problems and treatment by EAPs.
		MARG members, like many other mine operators, have such rules and programs in place and encourage employees to seek help without any adverse consequences if they successfully complete the programs.
		MARG endorses and encourages these employee-assistance programs, some of which provide for a second chance, even after a failure to self-report by the miner.  Indeed, MARG believes that they can play a vital role in providing drug and alcohol abuse.  However, MARG emphasizes that these voluntarily adopted programs vary from operator to operator and must not be mandated by MSHA.
		Moreover, no regulation should even imply, as Section 66.400(b) does, that a second chance be mandated for an employee whose alcohol or drug abuse causes an accident, injury, or fatality.  Such a provision clearly contradicts the Mine Act and other laws, and it would be challenged by the regulatory community.
		We realize that the present rule includes a provision that allows termination for some other separable, terminable events; however, this provision stands alongside other provisions that bar termination for substance abuse violations.  As such, the proposed rule leaves far too much room for interpretation and litigation, should an employer decide to terminate an employee following an accident involving substance abuse.
		MARG also endorses effective training for all miners and supervisors on substance abuse policies and regulations.  All miners who receive safety and health training, under Part 46 or Part 48, are, by definition, in safety-sensitive jobs, regularly exposed to hazards, and must be covered by substance abuse prevention rules and policies.
		MARG does oppose, however, the imposition of additional and specific testing, training requirements, in addition to the extensive training required under Parts 46 and 48.
		MARG also opposes the proposed rules provisions that mandate limits to specific types of drug and alcohol testing, such as DOT testing.
		We encourage MSHA to require operators to select testing methods that have been proven effective.  However, DOT testing has been criticized and is limited to the extent that it causes problems for technological advancement and the development of more effective testing methods.
		Similarly, MARG opposes specific, detailed mandates for policy content, training content, EAP content, return-to-duty policies, testing circumstances, and restraints on permissible operator disciplinary actions.
		MSHA has neither the expertise to evaluate compliance with, and the effectiveness of, these detailed requirements and lacks the authority to interfere with the operator's right to manage its workforce.
		Thank you again for the opportunity to comment on this proposed rule.  We encourage the speedy adoption of a performance-based standard consistent with our comments and suggestions.
		MARG agrees that MSHA needs to address drug and alcohol abuse in order to improve the safety and health of our most valuable resource, the American miner.
		MS. SILVEY:  Thank you, Mr. Hendrix.
		At this point, we have Jim Sharpe with Sharpe Media.
		(Discussion held off the record.)
		MS. SILVEY:  Excuse me.  Next, we will go to the Price, Utah, location, and we will have Leonard Bailey with the United Mine Workers of America.  Do we have Price, Utah?
		MR. BAILEY:  Yes.
		MS. SILVEY:  Okay.  Mr. Bailey, United Mine Workers of America, if you would just come to the phone and make your presentation.
		MR. BAILEY:  Okay.  This is Leonard Bailey from the Utah Mine, Peabody Coal Company, and I'm an employee there, and United Mine Workers, as the local union president.
		On behalf of the local -- our native members that utilize peyote as a sacrament in their recognized religious practice and our traditional lore that practice and religion, I am concerned about the terms "illegal or illicit drugs" and "controlled substance" as used in the context of the Federal Controlled Substance Act, 21 U.S.C. $812, and that MSHA might use this to formulate the use of, or impairment from, alcohol and other drugs on mine property, obviously, on the Navajo Reservation.
		As you know, this mine has resided on the Navajo Reservation, in the midst of it, so, therefore, this company that we're working for is just a visitor, and we have laws of the Navajo Nation pertaining to certain alcohol use.  So some of these substances, the employees practiced before that, and then, after the origination of the Federal Controlled Substance Act, 21 U.S.C. $ 812, and then the problem that MSHA perceives with the use of, or impairment from, alcohol and other drugs on the mine property, obviously, utilizes the Federal Controlled Substance Act, 21 U.S.C. $ 812, and without making any concession to the Act here on the Navajo Nation, it will be dwelling upon Native American religion, which is protected by these Acts.
		There's four of them:  So, (1) Religious Freedom Restoration Act of 1993; (2) Public Law 103-344, American Indian Religious Freedom Act Amendments of 1994; (3) Navajo Nation Code 17 N.N.C. 394 $ C; (4) also adjudication was made on April 17, 1990 by the Supreme Court of the United States called Employment Division of Oregon v. Smith relating to the usage of peyote as a sacrament.
		Consequently, about 80 to 90 percent of our members exercise these rights at one time or another to realign their mental and physical well-being.  There is a lack of substantial evidence that would indicate that a particular accident was caused by a person under the influence of peyote or a natural herb, as investigated by the Public Safety Department and also Peabody Coal Company, that were conducted.  The use of these substances is restricted to ceremonial proceedings.
		The solution:  We strongly advise MSHA to make exception to, or exclude, 21 U.S.C. $812, Schedule 1, Section (c)(12) from the Federal Controlled Substance Act when the use of, or impairment from, alcohol and other drugs on mine property, obviously, is being formulated for application here on the Navajo Nation.
		MSHA would have reassured our members that they are earnest about their objectives of implementing their alcohol and drug policy without prejudice.
		In conclusion:  We understand the substantial concern of the risk and hazard to our miners' safety, and, hopefully, we can forge ahead into developing a harmonious policy that we can use to strive against alcohol and drugs on mine property.
		Also, we have some federal workers here that are with me at present who can make a statement on some of the statements that I made as part of the religious practitioner users, and also I would like to make a small comment pertaining to the same alcohol in the workplace.
		MS. SILVEY:  Okay.  Thank you.
		MR. BAILEY:  I'm right here.
		MS. SILVEY:  Yes.  Is there a different speaker?
		MR. BAILEY:  The mine operators, pertaining to the mine operators, the drug users on the other sites, the sites of religious practice, which the mine operators have reduced their workforce just for saving and profit-making.  That's why they reduced their workforce.  The longer work hours, which pertains to overtime, and the seven-day-a-week work, which affects the users of over-the-counter drugs to keep themselves working, to keep the long hours, which affects their health, but these drugs that they use are over the counter.  So, therefore, it affects the health hazard and also the profit-making by the coal operators.
		I would like to hand this over to my fellow worker, Glenn Young.
		MS. SILVEY:  Okay.  All right.  Mr. Young?  Mr. Young?
		MR. YOUNG:  Yes.
		MS. SILVEY:  Okay.
		MR. YOUNG:  This is Glenn Young of the UMWA 1924 Unit.  I would just like to make a small comment on what my friend just said.
		I'm personally a contractor, and I'm working with 1924.  In the proposal, MSHA is proposing to use the Department of Transportation stuff, policies, even though MSHA didn't come out and say that they were going to test for these drugs.  We understand that the Department of Transportation has a guideline that says that they are going to use the United States Code to consider it illegal.  That's why we're concerned.
		Me and my fellow members are practitioners of these rituals which have been handed down from our culture to us.  Some of my members are really concerned about this.  So that's why we're questioning them.
		MS. SILVEY:  Okay.
		MR. YOUNG:  All of the data that were accumulated from West Virginia, Virginia, Kentucky, other places other than where we're working.  Some of the methods for testing go against our tradition and our religion.
		We believe that they have to revisit Number 8, at Part G, where it says, Executive Order 13.175, where it deals with Native Americans.
		Then on top -- running the business on Native American -- our tribe is a thorough -- and they tell  businesses that are running on their land that they have their own laws that they have to follow and abide by, some of the federal laws and some of the laws that they made there.
		Therefore, with my business, I can't just jump around to other entities to formulate a rule for me.  I have to go back to the tribe and say, "Hey, help me out with this.  We might have to get together with other entities and then formulate the rules."
		So I feel that by not taking Executive Order 13.175, MSHA just overlooked the tribe's position with our employees.
		Then, other than that, where we work, the way we look at this is that 95 percent of the workers are Native American, and five percent of the Caucasians are in the general administrative and secretarial positions.
		Therefore, we're looking at this as kind of bordering on racial discrimination because MSHA is saying that frontline, not the general administrators, people who are doing secretarial work.
		So we're viewing this as pushing on or bordering on the policies of the proposal that they are making, bordering on discriminating.
		So that's the only thing that I would like to say, from my representatives, the way my members told me to bring up at this meeting.
		MS. SILVEY:  Okay, okay.  Thank you.
		MR. YOUNG:  Thank you.
		MS. SILVEY:  I would like to make a couple of comments right now, and, first of all, so that everybody hears this, the agency, MSHA, is only regulating the ten-panel test that's in the proposed rule, and those are the listed drugs in the proposed rule which do not cover peyote.  Hopefully, I'm pronouncing it right.
		I did get your letter into us in our national office, but those 10 panels; there may be a reference in the preamble to whatever it is -- the Controlled Substance Act, but the reference is only to the Controlled Substance Act as it relates to the 10 drugs that are listed in the preamble.  So I want to make that clear.
		And then, Mr. Young, your reference to the executive order relating to tribal nations or tribal lands; we do have an obligation to address the impact on that, so I appreciate your comment in that area, but I did want to state that we are only regulating the 10-panel drug test and the 10 drugs that are listed in the rule before we leave here today, so that you know that.
		Now, is Mr. Estitty there, E-S-T-I-T-T-Y?
		MR. ESTITTY:  Yes, I'm here.
		MS. SILVEY:  Do you want to make a statement, sir?
		MR. ESTITTY:  Yes.
		MS. SILVEY:  Okay.
		MR. ESTITTY:  I agree with my two fellow co-workers here to recognize our herbs that we use for our rituals, not only peyote.  There are a lot of natural herbs that we use, and they are prescribed as medicines, religious rituals.
		I would like to turn to testing on 306.  On those accidents, it's only relating back to employees, mining employees.  Coal operators should be tested at the same time, too.  The supervisors are who I'm referring to.  A lot of times, when we're working -- working by the -- by the mine operators.  We work directly under the mine operators, and they should be tested at the same time, too, along with the mine workers; not only the employees -- so related back to employees working in the --
		MS. SILVEY:  Okay.
		MR. ESTITTY:  -- employees working in sensitive job duties.  They should be identified properly which kind of employees that you're talking to.  My co-worker, Mr. Young, is saying that it's the borderline of discrimination, your comments precluding the mine operators from being tested, where they should be tested as well as the hourly employees.  I fully agree with my co-workers -- they are both here -- that it's on the borderline of discrimination.  With that, I thank you.
		MS. SILVEY:  Okay.  Thank you, sir.  Okay.  Thank you very much.
		I just want to make one last statement so that everybody could hear that, that the proposal only covers the drugs that are listed in the rule itself.  So if the drug is not listed, the proposal does not address it.
		At this point, we will take a five-minute break, and, when I come back, we will pick up with our Birmingham location.
		(Whereupon, at 3:01 p.m., a short recess was taken.)
		We will now reconvene the Mine Safety and Health Administration's Public Hearing on the Proposed Rule on Alcohol-and-Drug-free Mines:  Policy, Prohibitions, Testing, Training, and Assistance.
		We will now go to our Birmingham location, and, in our Birmingham location, next on the list we have Daryl Dewberry.  Mr. Dewberry?
		MR. DEWBERRY:  Yes, ma'am.  Thank you, Madam.
		My name is Daryl Dewberry -- D-A-R-Y-L
D-E-W-B-E-R-R-Y.  I'm an international vice president of the United Mine Workers here in District 20.
		Let me say, first, that I am deeply saddened that you've chosen to basically eliminate the Alabama coal miners from these public hearings today.  We had some concerned miners who wanted to participate in this hearing.  In excess of, I understand, over 300 miners were out in the parking lot.  There was no consideration for their participation in this so-called "public hearing."
		This is not the way we've done it in the past.  I've been in this industry for 33 years, and this is the first time that we've ever done anything of this nature which is exclusive in nature.  It excluded the miners that had to stand out in the parking lot without bathroom facilities, and, in due respect to the agency here, they couldn't allow more than 54 people to come in and sit in.  We had over 155 to sign up, and out of frustration.
		Let me say that, as a sign of courtesy, I made it a point to notify, prior to today's hearing, that we probably have -- I anticipated 100 miners would be in attendance today.  However, as I say, we had over 300 show up, and we had only 54 to be seated at one time.
		Out of frustration, the rest of them did leave, and I appreciate your consideration of allowing them to come back at a later date and give testimony.  However, as I looked around outside today, I saw employer and employee alike that was prohibited from hearing the other comments.  I was fortunate that I was afforded the opportunity to come in and sit down and listen to a great deal of testimony, although I was in and out.
		However, a lot of people weren't privy to do that; they were excluded, and, rightfully so, that was because, unlike our past practice or custom where we've rented either a civic center or a conference room at one of the larger hotels that accommodated those numbers of people, this format, or this form of public hearing, in my opinion, is meant to prohibit miners and employers both from having their day to submit their comments in support or in rejecting any proposed rules.
		As I stated, they were in the parking lot.  It's hot out there.  They got tired, frustrated, and left, so they are not available now.  There is just a handful of us that stuck it out today, but we appreciate you getting back and seeing if we can accommodate their testimony, as required by the 1977 Act.
		Let me say that the majority of those miners that I spoke with are opposed to your proposed rules.
		Let me go to some of the practice.  We have here, in Alabama, I guess, every coal operator, and I've been a union advocate for 25 years, from a district rep. to the international vice president.  I've handled the administrative process of the grievance procedure.  I've handled negotiations.
		I guess I'll deal with General Resources first.  They were one of the first ones to have an employee-assistance program, as well as a drug policy at their mine.  That policy gives them one shot.  It is not punitive in nature.  They have generally had consistent application of their policy, and we actually support it.  We don't want drugs in the workplace either.
		We feel that it is a mandatory subject of bargaining.  We feel like that it is the relationship between the employer and the union to negotiate those conditions of employment and not for the government to come in and try to regulate.  We've got it all said.
		We've been doing this for two decades, possibly, and if it ain't broke, you all are a little late in the game to try to propose rules to govern us when we've been doing it and taking care of our business for years.
		With that said, I'll go on to the -- they have a program which is basically a random test that is consistent in the application.  All of our companies here in Alabama do test for all of the known drugs as they come up.  We may have to tweak it because there's additional drugs that come up every day, but, in general, they have a confirmation test, in the event that they have a positive.  They go to the expense of using a GC mass spectrometer to confirm that it was a valid test.
		So they give the employees, and I guess I sound like an employer, at this stage -- I feel like I've been a part of coming to the end results with the drug programs that work, and we've also discussed it -- Jim Walters and other places -- maybe going to random testing, to go a step further.  I know we have random tests at the P&M Coal Company.  We have random testing that was negotiated by the parties.  We have random testing at the Drummond Coal Company which was negotiated by the parties.
		We've got an excellent, I would say, deterrent against drug abuse here in these mines, and for MSHA to come in with these proposed regs to, I guess, sort of interfere with what we've already had established for decades is somewhat concerning to me.
		Let me get back to my notes here.  I have a few other things.
		Let me say that, you know, as a result, I guess the next thing that we would come up with would be -- I think I heard someone else discuss this or bring this up -- our miners are on up in age, and the biggest safety hazard that we have is overwork.  Our people work six days a week, 10 hours a day, and fatigue happens to be the biggest concern of mine than does drugs.
		If you're going to regulate anything, maybe we should go back and regulate the no mandatory overtime over 40 hours, or no mandatory overtime over eight hours a day.  I think that you would find a better safety record and have a more viable, alert workforce with a lot less accidents.
		Of course, in this day and age, we're probably a generation and a half between the senior miners and the younger miners in these coal mines.  I don't know where we would find them, and that's why our people are worked to the point of exhaustion, simply because experienced miners are hard to find in this day and age.
		With that said, I'm not going to get into the mechanics of the proposed rules, other than just to leave you with a feeling that if it ain't broke, don't fix it, and if it is broke, we've been successful in sitting down in good-faith bargaining and coming up with a solution to it.
		So, with that said, I'll yield any other time or answer any questions that I may have.  Let me say, throughout the industry, that I've probably handled more drug cases and arbitration than any other advocate that I know of; my record stands better.
		The union don't want the drug abuse or anyone impaired working in the mines no more than the employer.  We don't want our people exposed to any undue hazards, and that includes working to the point of fatigue, where that causes an unsafe condition in the mines.  Thank you.
		MS. SILVEY:  Okay.  Thank you, Mr. Dewberry.  I only want to add two comments, and I appreciate your comments and hope that, indeed, we can work something out with respect to the rest of your members' testimony.
		I am glad that you were able to listen to most of the testimony this morning, and I would like to say, on behalf of the panel here and the agency, that doing it in this format -- you know what they say about the best-laid plans -- was clearly, and, as you noted, you have been with us many times in the past with respect to our public hearings.  So doing it in this format was not meant to preclude anybody from participating in the public hearing, and that tells you how sometimes you can have a laudable purpose, and things come out the other way.
		But it was, indeed, meant to allow the greatest and the broadest participation that we could allow.  So I would like to say that to you, and then we'll just figure out if there is a way we can try to make sure, if people want another opportunity, they can have that opportunity.
		I don't have any questions or anything or comments -- I don't know whether the panel members do -- of you.  I don't know how you have the people there in Birmingham, but next on my list, I have Dale Byram.  Is Dale there?
		MR. DEWBERRY:  Yes, he is.
		MS. SILVEY:  Are you speaking, Dale?
		MR. BYRAM:  Yes, I am.  This is Dale.
		MS. SILVEY:  How are you doing?
		MR. BYRAM:  I'm good.  How are you, Ms. Silvey?
		MS. SILVEY:  I'm good, too, Mr. Byram.  I've got to laugh, I'm so pleased, people.  Bear with me.  Okay.  You can go ahead.
		MR. BYRAM:  Okay.  My name is Dale Byram, and I work with Jim Walter Resources in Brookwood, Alabama.
		Jim Walter Resources, Inc., supports an alcohol and drug-free workplace.  For over 20 years, we have had in place an extensive employee-assistance program available for both our employees and their dependents.  Our program's initial focus was substance abuse, yet, as needs were identified, we expanded support for medical issues, anger management, and much more.
		Certain aspects of MSHA's proposed regulation could enhance our existing program while other sections would decrease its effectiveness.
		I would like to make specific comments to the following sections of the proposed regulation, and I know that, as we have an opportunity to comment today, being later in the day, a lot of people have made similar comments through the day, but I would appreciate your patience because we feel it's important to be able to say these things.
		Under "Definitions," 66.3, "Persons Performing Safety-sensitive Job Duties," and then "Safety-sensitive Job Duties," we recognize that all job duties on a mine site have the potential to be safety-sensitive, even if they are not continuous or reoccurring.
		From our perspective, the regulations should be inclusive of all mine employees.  The proposed regulation's definition for "safety-sensitive job duties" state that "the type of work activity where a momentary lapse of critical concentration could result in an accident, injury, or death, those job duties in a mine that are removed from such potential.  This includes everyone from administration to the miners at the site."
		Under "Substance Abuse Professional (SAP)":  "A SAP is a specially trained and qualified person.  It is our experience and understanding that there is a limited number of substance abuse professionals, as compared to employee-assistance professionals, in the State of Alabama.  As outlined in the proposed regulation, the SAP has specific duties and responsibilities.  Their involvement with the patient is limited to an initial visit, a written education and treatment plan, reevaluation or return to duty, and then determining follow-up testing requirements.
		"An SAP differs from an EAP.  Except as outlined, they have no continuous patient contact, as does an EAP, who, we believe, has the opportunity to be more successful in rehabbing a person.
		"We recommend that the mine operator have the option to either use an SAP or an EAP for the responsibilities listed in the proposed regulation."
		Under 66.100, "We support the 10-panel drug test."
		Under 66.101, "We support the directive of this section where it talks about prohibited behaviors."
		Under 66.203, "Training for Supervisors," "(a)(1)(v) trains them to make post-accident determinations and what procedures to follow when such determinations are made."
		This needs further explanation.  We need to know what they are referring to, as far as determinations and procedures.
		66.204, "Miner Assistance Following Admission of Use of a Prohibited Substance":  "(b) Miners who voluntarily admit to the illegitimate or inappropriate use of prohibited substances prior to being tested who 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 A.66.405 and 406.  However, a positive test result during the return-to-duty process will be considered as a violation of the mine operator's policy."
		"Our concerns:  The regulation should limit self-admission to a single event.  As it is currently written, a miner has unlimited opportunities to disclose what their problem might be.  Without limits, the mine operator would be unable to prevent an activity that fails to facilitate the miner's responsibility to stay alcohol and drug free.
		"We have seen the value in a program that provides a vehicle for miners to self-admit.  However, 66.204 leaves this opportunity open ended, providing a last-minute out for a miner to ask for assistance rather than to be found positive on a drug test.
		"The proposed regulation should identify that the miner forfeits the opportunity to self-admit once notified to report for testing."
		66.300.  It reads, under (a):  "The mine operator must implement an alcohol- and drug-testing program that is valid, reliable, and protects the privacy and confidentiality of the individuals to be tested."
		Several areas of the proposed regulation jeopardize this requirement, and I'll address those as we get to them.
		66.301, "Substances Subject to Mandatory Testing."  I may have said this earlier:  "We agree with the 10-panel drug test."
		66.304, for the "Preemployment Testing":  "We believe that the mine operator should have the sole discretion and the right to refuse or withdraw an offer of employment to any applicant who fails a preemployment alcohol and/or drug test, and I'm not sure if the reg. is clear in that."
		66.306.  "Earlier commenters talked about their concern about the test being given within an eight-hour period following an accident.  For this to happen, there is a potential that many care-providing facilities could possibly be involved.  HIPPA is extremely strong within these facilities, and additional work and education would be required, I believe, by the government to help them understand if this aspect of the regulation were to be approved."
		56.403, "Operator's Actions after Receiving Verified Test Result."  "Their actions after receiving verified test results, once notified of a positive result verbally, the mine operator must immediately remove the miner from safety-sensitive jobs and refer him to an SAP.  This action must be done before receiving the written report."
		"Once the miner has been removed from the job, or any mine job, the regulation should mandate a specific timeframe for the miner to contact the SAP or the ESA, if it's allowed.  The current proposed regulation fails to address this need.  Failure to contact an SAP within the designated timeframe could result in the same actions as outlined in 66.400."
		66.500(a) makes reference again to "the confidentiality of the communications between the mine operator and the miner."
		"This, again, was referenced earlier in the reg., and we have concerns because, in four, where it says, 'records of which miners were tested, the test results, return to duty, and follow-up test results will be kept separate from the aggregate data.'  When you begin to maintain multiple files, it has the potential to lose confidentiality.
		(c)(1), "Post-accident test results, whether positive or negative, must be kept with accident files."
		"This, again, has the potential to break down confidentiality."
		2(d)(2), "Again, any and all alcohol and drug test results will remain available upon request of MSHA inspectors or investigators and will be used in assessing the overall compliance with safety regulations, as well as in determining the cause of the accident."
		"Again, multiple persons have access to these confidential files and this confidential information."
		I would like to thank the panel for this opportunity to share our thoughts and concerns.  Jim Walter Resources, Inc., is committed to the safety of our miners and supports and alcohol- and drug-free workplace.  Even though our particular program is designed to give an employee a second chance, we have talked with many mine operators who have zero-tolerance programs that are in place and functioning.
		We are members of the Alabama Coal Association, and most of our members have programs that have zero tolerance.  Even though it differs from the design of our particular program, we respect their position, and we support this change if it were to be placed in a regulation.
		That's the end of my comments, and I'm available if you have any questions.
		MS. SILVEY:  Okay.  I just have a few comments, Mr. Byram.
		First of all, I would like to say, and especially in light of the fact that Mr. Dewberry spoke before you, that we, as an agency, appreciate the fact that both you, the laborer, and the industry, the employer, that you are there, and you have a program, and, with both of you being there and having talked about it, and the fact that you've had one in place, and it, indeed, does work.  So I would like to say that at the outset.
		MR. BYRAM:  Thank you.
		MS. SILVEY:  Second, I would like to say that the comment earlier, and I'm saying this just as a clarification because we appreciate all of the comments you've made, but when we were going through your list of comments on 66.203, that was talking about the training program for supervisors, and it was (a)(1)(iv).  It said, "Trains them to make reasonable-suspicion determinations and what procedures to follow when such determinations are made."
		That was really training them how to make determinations when it got to reasonable-suspicion testing.  That had to do with training them about what to look for when carrying out Section 66.307, which is "Reasonable-suspicion Testing."  "An operator's determination that reasonable suspicion exists," and this provision has in it that that should be based on certain things, and part of that training is to train persons and supervisors in making that determination.
		MR. BYRAM:  Okay.
		MS. SILVEY:  The comment you made about HIPAA, the Privacy Health -- I forget exactly what it stands for, but it's talking about keeping information with respect to a person's healthcare private, and I made this comment earlier today, that we clearly recognize the privacy issues involved here, and we want everybody to be assured that the agency clearly understands the implications of the HIPAA.
		I don't know whether we specifically refer to HIPAA in the proposal or not, but I do want people to understand that we appreciate that, and we appreciate your comment in that regard.
		On your comment on the SAP, I guess I need to stop saying these acronyms -- the substance abuse professionals and the employee assistance program are professionals --
		MR. BYRAM:  Yes, ma'am.
		MS. SILVEY:  -- you said that your suggestion was that operators have the option to use either.
		MR. BYRAM:  Yes, ma'am.
		MS. SILVEY:  Who do you all use in your programs now?
		MR. BYRAM:  We use an employee-assistance professional, but she is also an SAP, and if we had the need for an SAP, and they could provide that service, one of the things that we have found is that if you have a program that invests in the recovery of the patient, the professionals have to have continued contact to help guide these people through some changing of behaviors, for lack of a better way to say it.
		MS. SILVEY:  Yes.  Okay.
		MR. BYRAM:  The SAP's contact with the patient is not as continuous -- the norm -- is not as continuous and supportive as is the EAP.  So we felt like having the EAP, with the easier access -- if there's only, say, 25 or 30 SAPs in Alabama, and you have to provide a list of the SAPs for the employee to contact, you may have situations where people will be required to drive some distances, and this could even be more extreme in some other states around the country.  But EAPs are more readily available and have, from my experience, the ability to help facilitate care for a patient.
		MS. SILVEY:  Okay.  I don't have any other comments.  Does anybody else have other comments?
		(No response.)
		MS. SILVEY:  Okay.  Thank you.
		Next on our list, we have Dwight Cagle in Birmingham.
		MR. CAGLE:  Good morning, Madam Chair.
		MS. SILVEY:  Good afternoon.
		MR. CAGLE:  Dwight Cagle, D-W-I-G-H-T      C-A-G-L-E, on the UMWA Safety Committee at one of Jim Walter's mines.
		MS. SILVEY:  Okay.
		MR. CAGLE:  I would like to touch on a few items that were brought up.
		MSHA presented this proposed rule as an urgent need, but provided no data to prove that alcohol and drug use in the mining industry contributes to accidents and injuries.
		The UMWA fails to see the urgent need for these regulations because, at this time, just like Mr. Dewberry and Mr. Byram testified, the majority of all of the coal industry around our area already have a drug- and alcohol-testing program in place that works.  They have been in use since the early eighties.
		MS. SILVEY:  Okay.
		MR. CAGLE:  I'll turn the page here, and excuse me a minute there.
		MS. SILVEY:  That's all right.
		MR. CAGLE:  Another thing I would like to touch on, the two hours' training for supervisors.  I don't think that that would be sufficient training that they can identify anyone on drugs or alcohol.  If this is going to be enforced, they need more training for that.
		Were drugs and alcohol involved in any recent major disasters?  None that I know of.
		Data from mine accidents and injuries do not state either.
		Where there is a documented problem, the agency should be using our taxpayers' dollars to promote and improve those control standards.  The data that are put out by mines show that black lung is once again on the rise, and I believe we could spend the taxpayers' money more wisely trying to care of this.  There is also a need to do some more study on diesel particulate in the mines; cancer, that is, being exposed to diesel particulate.  That's all I have at this time.
		MS. SILVEY:  Okay.  Thank you very much.  We appreciate your comments. I don't have any questions or further comments.
		Next, we have Mr. Ledlow.  Is he there, Dale Ledlow?
		A PARTICIPANT:  Not on this list.
		MS. SILVEY:  Okay.  All right.  I'll just keep going down the list, then.
		Next, we have -- you are next, Tom.
		MR. WILSON:  Yes, ma'am.
		MS. SILVEY:  Mr. Wilson.
		MR. WILSON:  Thomas Wilson of the UMWA International, and it's my understanding that, as originally sent to you, the list had 154 names of persons that had signed up to testify today, and --
		MS. SILVEY:  That's correct.
		MR. WILSON:  Yes, ma'am.  Okay.  I know you stated earlier that you were having a bad day.  I cannot even begin to describe how bad of a day this has been.
		MS. SILVEY:  Did I state that?  I don't think I stated that.  I don't think I said that, rather.  We'll have to ask the reporter to go -- I don't think the reporter can read that.
		But let's go on.  Okay.  You might can read into things.
		MR. WILSON:  I arrived at the MSHA District Office, rang the doorbell, and was promptly told that nobody could come into the building until 7:45 a.m.
		I went and stood in the parking lot with UMWA District 20 Vice President Daryl Dewberry.  After standing in the parking lot for approximately 10 minutes, we observed Tommy McKnighter of Jim Walter Resources leaving the MSHA Building.
		The miners and miners' representatives do not deserve the same consideration as coal operators at an MSHA office.
		I have been participating in public hearings since the early eighties.  I have never, never, never seen anything as disrespectful as what I observed today.
		The miners in Alabama were treated far less than our nation's most precious resource.  Zero respect was shown to the Alabama miners.
		Not affording miners at a facility to attend a public hearing is not respectful.  Not having restroom facilities is not respectful.  Leaving miners in the hot Alabama sun is not respectful.
		I, personally, do not believe that I can effectively describe how MSHA's actions today have discriminated against the miners, how MSHA's actions today have demonstrated MSHA's total disregard for the miners' comment, and how MSHA's actions today have placed miners at a distinct disadvantage with the rest of the stakeholders.
		Other stakeholders were allowed and afforded the opportunity to hear today's discussions and to understand this record.  We were not.  This, in itself, puts miners with a distinct disadvantage concerning this proposed rule, especially with the current short comment period.
		I do not believe that I, myself, can recover from this disadvantage, and I also believe that MSHA has harmed the public-comment process.  It is important that your Committee understand these comments because you will not be able to address a solution to today's mess if you're not willing to admit the mess.
		Prior to today's mess, MSHA District 11 was notified that miners' turnout for the public hearing was expected to be heavy.  MSHA either didn't believe this or simply didn't care.  MSHA just realize that 250-plus miners in a parking lot under the hot Alabama sun is not a public hearing.  Two-hundred-and-fifty-plus miners without restrooms is not a public hearing.
		Expecting miners to work midnight shifts, standing in a parking lot without restrooms, and stay awake while the rest of the country testifies is not a public hearing.
		Shuttling miners in and out of a conference room is not a public hearing.
		With all of that said, I must repeat Dennis O'Dell's earlier request to suspend this rulemaking process.  Don't pass go.  Start over.  That's the end of my comments.
		MS. SILVEY:  Yes.  Okay.  Thank you, Tom.
		I would just say that, and I know that you have participated in MSHA public hearings for a long time, and we appreciate your participation, and, as I stated earlier, we will see if there can be some type of accommodation made to hear the miners who came today and were not able to get into the building.  So we appreciate your comment.
		I have one more person on the list from Birmingham, and that's Ray Lee.  Okay.
		MR. LEE:  Okay.  My name is Ray Lee.  It's R-A-Y  L-E-E.  I'm the local president of 2397, which represents about the main majority of the people that was here at this meeting this morning.  They have all went home, but it was a majority of our local that was here.
		MS. SILVEY:  Okay.
		MR. LEE:  Okay.  The purpose of this hearing is to allow concerns to be heard from the public concerning the proposed changes in the existing standards for the possession and use of intoxicating beverages and narcotics and make the new standards applicable to all mines.
		According to the Act, the first priority and concern involving the coal or other mining industries must be the health and safety of its most precious resource:  the miner.  It is further defined in the Act that the miner is an individual working in a coal mine or other mine.
		It is further stated that the purpose of this Act is to establish interim mandatory health and safety standards and to direct the Secretary of Health, Education and Welfare and the Secretary of Labor to develop and promulgate improved health and safety of the nation's coal or other mines.
		Let's look at the word "improved."  "Improved" means to make or become better.  In war, when a segment of the military gets camped in a certain location with hostile forces roundabout, sentries are placed to guard against sneak attacks by the enemy.  All possible points of entry into the camp are guarded in order to secure the safety of all inside the camp.  If just one of these points of entry is left unguarded, there exists an opportunity for the enemy to exploit this and enter the camp, thus reducing the safety of those inside.
		To allow the exclusion of one sector of miners, the supervisory employees, from the new standard is like leaving the one entry to the camp unguarded.  Two groups of miners will suffer loss of protection and a safer and healthier workplace.
		Supervisors who are engaged in the consumption of intoxicating substances who come to the  workplace under the influence of such substances, or who provide these substances to others in the workplace, put other persons at risk.  Not only are other supervisors endangered, but the nonsupervisory workers also.
		We all have the right, mandated by the Act, to have as safe and healthy a workplace as is possible.  This proposed change will not improve the health and safety of the miners.  In fact, it leaves open the opportunity for miners in an unstable condition to work without fear of being detected.
		Would you like to come to work knowing that there exists the possibility that a fellow worker could be at work while under the influence of such substances?
		The Act is to protect the miner, now protect us all.  Thank you.
		MS. SILVEY:  Thank you, Mr. Lee.
		Next, I have a few more people on my list at Birmingham, but if they are not there -- Larry Spencer.  Is he there?
		MR. SPENCER:  I'm here, but I decline.
		MS. SILVEY:  You decline?  Okay.  Is there anybody else in Birmingham who wishes to present testimony?
		MR. LEE:  No, ma'am.  That's it.
		MS. SILVEY:  That's it?  Okay.  Thank you all very much.
		I'm going to now go to Pittsburgh.  Can we go to Pittsburgh, please?
		I have a number of people from Pittsburgh.
		MR. BOWERSOX:  I'll start off.  I'm Ron Bowersox, B-O-W-E-R-S-O-X.  I'm the UMWA International representative.
		First of all, I would like to go on record agreeing with Dennis O'Dell, Jim Weeks, Daryl Dewberry, and Tom Wilson.  The way these hearings were handled today; I agree, they should have been stopped and further planning.
		In Pittsburgh, we're in two separate rooms.  We have an audio room and a video room.  Now we're in the video room that's probably 15-by-20, and if you're far left, you can't even see the speakers all day who spoke.  Three videos and two audios is just too much for one day.
		We have miners that traveled here today from below Fairmont, got here at 8 o'clock this morning.  I don't know what time we're going to leave here today.  You're talking about miners' safety.  There's people that have to go to work the midnight shift tonight.  It's just not right.
		In the new proposal, existing policies at different companies; we have a major issue with contractors.  What policy do contractors fall under and under what kind of a mine study?  Is it the policy that that person is employed by, or is it the policy at the mine he is working at?  And how is random testing done for contractors?
		From what I have here, I have an average number of contractors working at mine properties per day at several locations, and they are going to call me, because I have a backup here, to let you know that I'm not just pulling these numbers out of the air.
		Homer City Coal Processing; we have 11 full-time workers, UMWA workers, and we have 15 contractors per day at work.
		Keystone Brick Plant; we have seven full-time workers, and on almost a day-to-day basis, you've got at least three contractors there.
		Federal No. 2, Patriot Coal Company; eight to 10 contractors per day.
		McElroy; 30 to 40 contractors underground, 30 or 40 on surface.
		Dennis O'Dell and Jim Weeks both covered all of our issues.  I agree with all of the issues, such as we would like to see more backup data that shows alcohol and drug use as a contributing factor.
		We're talking about drug and alcohol involved in accidents, but I think MSHA should take a real hard look at some of these mining plans that have been approved, like the Sago, the Aracoma, the Darby, Crandall Canyon. Those are the mines that are killing miners.
		I also agree that the administrative and clerical personnel should not be left out of the pool of testing.
		There is no real means if a miner supervisor comes to work, and we feel he is under the influence, how does that miner handle that situation?  Who does he report that to?
		I guess you could cover that -- I was really concerned about Part 48 and all of that extra training being added to that.
		So I would like to have a few of the miners who will just comment on the numbers that I talked about of contractors.
		MR. LYDIC:  My name is Dale Lydic,
L-Y-D-I-C.  I work at the Homer City Coal Processing Corporation that you referred to.  I'm a member of the United Mine Workers and president of my local.
		Contractors.  As Ron stated, we have an average of 15 contractors on our property every day, most of them in hauling.  So my members are subject to the random -- we don't have a drug and alcohol test now, but if MSHA were to pass that, we're subject to the drug and alcohol random testing.
		If I'm driving a haulage truck down the road, and I am under the influence of drugs or alcohol, I endanger myself and fellow employees.  The contractor that is driving a 40- or 50-ton Uke using the same haul road who is not subject to drug and alcohol testing; doesn't he endanger myself and my other employees that I work with?
		If I'm working in the plant -- I work at a surface facility, a prep plant -- and there's contractors working on the same floor as me or above me, and they are not subject to the random drug and alcohol testing, why not?  They are working right beside me.  It's no different than if one of my fellow employees is randomly tested.
		Safety is safety, no matter who I work with.  They should be safe, too.  If they are on the site, they need to be safe, and they need to be under the same regulations.  Thank you.
		MS. SILVEY:  Could I ask you a question, Mr. Lydic?
		MR. LYDIC:  Lydic.
		MS. SILVEY:  Lydic.  Thank you.  Really, I guess I probably should have said it to Mr. Bowersox because you gave me that list of Homer City, Keystone, Patriot, McElroy.  The haulage contractors that you spoke of, specifically, Mr. Lydic; are they required to have Part 48 training?
		MR. LYDIC:  The MSHA training, yes.
		MS. SILVEY:  They are, aren't they?
		MR. LYDIC:  Yes.
		MS. SILVEY:  So they would be covered by the proposed rule.
		MR. LYDIC:  Even though they are contractors on and off our property.
		MS. SILVEY:  Yes, sir.  Right.
		MR. BOWERSOX:  Can I ask you a question?
		MS. SILVEY:  Yes.
		MR. BOWERSOX:  Okay.  You say the McElroy mine has got 40 contractors.  How are they randomly picked if they are for one week, and the next week that they are back again may be not for a month?  How is that name sorted under random picking?  How is there name thrown into a hat?
		MS. SILVEY:  All that the proposed rule set out was that it had to be 10 percent random.  So the workers who were on that property; they have to have 10 percent of the workers.  Under the proposal, that was the percentage.
		You know, I heard companies today tell me they had up to 33 percent, some said 20 percent, so however the final rule came out on the percentage, it would have to be 10 percent or 20 percent or whatever it would be of the workers on that property that would have to be subject to random testing.
		MR. BOWERSOX:  So could 10 contractors on any given day, those names would have to be given somehow, through a computer?
		MS. SILVEY:  Not all.  However that random program would be set up.  I can't tell you right now how they would set it up.  The only thing the proposed rule said about it -- it didn't say specifically how they it had to be set up, except that it had to cover 10 percent of the workforce, and I think that was an annual -- it was 10 percent annually, 10 percent of the workforce.
		MR. BOWERSOX:  So if I'm a contract company, and I have contractors working at a given mine, my policy is going to be equal to that mine that my employee is working at, can be no different.
		MS. SILVEY:  I'm not following you there now.
		MR. BOWERSOX:  Okay.  I have a company that has contractors.  I'm going to send one of my employees to a coal mine.  That coal mine already has a drug policy in place.  Does that person working at that mine fall under the policy at the mine he is working at?
		MS. SILVEY:  Go on.  I'm sorry.  I'm sorry.
		MR. BOWERSOX:  No, go ahead.
		MS. SILVEY:  No, go on.  Go on.
		MR. BOWERSOX:  Okay.  You have a contract miner working at McElroy.  I'm a company.  I have a contractor working there.  What policy does that person fall under while he is working there, the mine I'm working at, or does my company have their own policy?
		MS. SILVEY:  Okay.  I just want you to know, you can see, it takes more minds than one.  But one of the things I started off saying, and I'm back where I started, that's why I asked you, Mr. Lydic, did they have to have Part 48 training?  I had a reason for asking you that.
		They have to have Part 48 training.  The way the rule is constructed now, you know, we got a lot of comments saying we ought to do it differently and just cover everybody, but the way it is now, if they have to have Part 48 training, then they would be subject to the drug-testing requirements in the rule.
		Now, to get to your specific questions, and we all know how the mining industry operates, if a contractor comes on a mine property from ABC Contracting Company -- I'm making that up -- okay? -- they know that they have got to train that person under Part 48.  They have got to train him, or the mine operator has got to train him, and I know, a lot of times, the contractors provide the training.
		So then, if the drug rule passed, then that person, whoever that person is, does come under the rubric of this rule, has got to be subject to the requirements of this rule.
		I'm just saying to you, I don't know how it's going to work exactly, and I appreciate your question, and maybe those are things we need to specifically clarify.  My guess to you is, most likely, the contractor would have a drug-testing program, but the drug-testing program would have to be the same as this one.
		Now, I'm just saying that.  I don't know exactly how -- part of it -- I'm saying this to you, but I could be dead wrong.  Part of it could depend on the contract that the contractor has with the mine operator, in terms of what the mine operator provides, in terms of compliance with the MSHA standards.  But suffice it to say, for me to answer your question, that person would have to fall under the requirements of the proposed rule, the way it is structured now.
		A PARTICIPANT:  That doesn't answer your question.  That really doesn't answer your question.
		MS. SILVEY:  Well, what's the question, then?  I missed it, then.
		MR. ALTMAN:  My name is Rick Altman,
A-L-T-M-A-N.
		MS. SILVEY:  Okay.
		MR. ALTMAN:  I'm vice president of Local Union 1638, United Mine Workers.
		The dilemma at our complex, okay, everybody that's been drug tested at our complex so far has been clean, no rampant use of drugs.  I don't really think we need a hearing.
		Here is what we had proposed at one time with mine management, that if a contractor comes on the property, and we have a 25-percent rule at our mine that management and union gets the test, as the contractor comes on, if we are going to be tested, the same contractors, individual-wise, pretty much are there every day.  You have the same individuals coming.  That individual would also have to, and I'll be honest with you, I've heard comments today about all of the expense.  The expense comes to you and I.
		Eventually, it's the consumer, regardless of whether it's robbing Peter to pay Paul, the dime comes out of our pocket.  But they need to be tested at that mine site also because what they do, at the -- they directly work with the individuals that are union-paying members.
		Underground, what they do, even if we are not around, if they do something, and they are impaired, they have the lives of 702 people because, at this point in time, we are the largest union mine in the United States, and what we would like is that if they are going to come onto the property, they then fall under the same parameters, and they are tested in the same way.
		Now, it's not necessarily that the numbers fall under the 25 percent, but their numbers are also randomly selected and tested at the mine.  I also know that those individuals are not impaired and are not going to put anybody at that coal plant in harm's way.
		I would like to touch on one more thing because I know -- you know what?  My heart goes out to you.  You've had one heck of a day.  You know, everybody is either a drug addict or an alcoholic.  To use this term that I think a little umbrage to, "Joe Six-Pack."  All right?  We're saying Joe Six-Pack has one more step.  Now, he is not an abuser.  He is just a guy or a woman who maybe just stayed out an hour too late.
		Consol's goal is zero tolerance.  Now, we have a term called "capital punishment."  "Capital punishment," in the industry, means you're terminated.  So does Joe Six-Pack-plus-one deserve to be terminated just because of a slight indiscretion?  He is not an alcoholic.  He is not a drug addict.  He is just somebody that stayed out just a tad too late.  Now, does that warrant capital punishment?
		I think those are issues -- if you take what you have written down, and you take some of the other programs that are out there, squash them together, toss out the good, toss out the bad, and mix it together, then I think we would have something.  But I think when people are talking about zero tolerance, you're talking about livelihoods, especially of people who are not abusers, just somebody who made an accident, I think those are issues that need to be addressed and looked at.
		MS. SILVEY:  Okay.  I appreciate your comments.  I understand what you are saying.  You are saying that when that contractor comes on, because a lot of times the contractors are on the mine property with the same frequency as the mine employee, that they -- I beg your pardon?
		MR. ALTMAN:  We know some of them by their first names.  That's how frequently --
		MS. SILVEY:  I understand.  You're saying they should fall under the same requirements of the rule as the mine operator's requirement on that property.  So even if, hypothetically, I were to say to you, "I can tell you right now, they would come under the requirements of this proposal," you're saying that the testing procedures, everything, it ought to all be the same for all workers on that --
		A PARTICIPANT:  It's not a double-standard.
		MR. ALTMAN:  Because then we know -- is anybody going to be honest?  No.  If everybody is right there, then we're equal.  It's just the way it is.
		One more comment, and I'm shutting up, is on when the supervisors are trained, if they really want to do that, then every individual should be trained because not only can the employee be impaired; the supervisor can be impaired.  So if you're going to train, then everybody should be trained so that we all understand, and maybe we can see the foreman who is impaired.  But I think there has to be equality along the line, and I appreciate your time.
		MS. SILVEY:  Okay.  I understand that.  Okay.  Thank you.
		MS. SILVEY:  Do you have some more of your members, Mr. Bowersox?
		MR. BOWERSOX:  Yes.  Just from what Rick is saying, right now, at the present time, you're hit in the head with a double-standard, and we agree that that can't happen.
		MR. HAUGHT:  My name is Martin Haught, ma'am.  I work at the Federal Two Mine, and I'm a safety committeeman.  I haven't been on the committee too long, but I've worked over there now for a couple of years, and I'm a union member, 1670.
		I feel that this thing with these contractors coming into these coal mines and working with these union people -- men and women, they come in there, and they work alongside of us -- they should be given the same rules we go by.  I feel it's discriminate, really, toward us that they don't have to go through a drug test and the same tests that we do.
		There is no reason for me to go in there and put my life on the line working with a man like that.  Maybe he don't have a family, but I do, and I know these other people do, and I don't think that that's fair to me and my family.
		I feel that it's completely unfair, and I don't think it's right for me to go in there and work for a boss who might be impaired because if he is, he could cost me my life just as well, and I just don't think that that's right for me to have to do that, being a union member.  I don't think any of these other people should have to do it.  That's all I have.
		MS. SILVEY:  Thank you.
		MR. BOWERSOX:  One more person, please?
		MR. LUKETIC:  I'm Kevin Luketic.  I'm the chairman of the Safety Committee at Federal Two.
		We were talking about a double standard.  I can give you a good example.
		What happened is they random picked 15 percent, approximately 500 union members who work here at this mine.  They had done about probably 40 union men before they called one boss.  When they called this boss, all of the union men were clean.  When they called this boss, I think a Caucasian that says, "Somehow we asked for the test, the UMWA asked for the test.  We couldn't offer you a result from this test.  It's all confidential," and so forth.  The boss admitted, "I had to be gone for a month to go to rehab because I had cocaine in my system."
		Well, meanwhile, not long after that, they fire a union man because he came to work, and he had something in his system that he took about a couple of weeks before his test.  This man wasn't given a chance.  He was fired.
		We had a contractor that came to the mine.  Alcohol was on his breath.  They talked to the company.  The union man talked to the company.  Their answer was, Well, next time he comes, we'll just have him taken off the property, but yet he might go to another mine.  So he is taken off Federal Two property, but what's keeping him from going to another mine under the influence?
		So there is double standards, and what Mr. Bowersox said, you know, and what Dennis O'Dell said today; I hope that people were listening to them.  Thank you.
		MS. SILVEY:  Okay.  Thank you.
		Anybody else in Pittsburgh?
		MS. JAMES:  I would like to make a comment.  My name is Tanya James, T-A-N-Y-A  J-A-M-E-S.  I'm a union member, and I'm also the chairman of our safety committee at -- Mine.
		We pretty much have our hands full, as is, with the conditions and stuff that we face every day in the mine, and if there is something new -- we already had a drug policy and alcohol policy up there.  I don't agree with it, but it's better than -- I agree with the others.  I think things need to kind of coming together here, and I believe something good will come out of this.
		I would also like to say that I do support our director of safety, Dennis O'Dell, and the fact that the theory was not brought up properly, and they do not allow all of our brothers and sisters to voice their concerns and comment, and they have to stand out in the parking lot, and that's very disgraceful.
		I hope that this comes about at the end that the conditions and stuff for our members is fair, and they can voice their concerns.
		We do have a lot of contractors.  I work underground.  We have a few underground, but most of our contractors are outside on our prep. plant, and there's probably approximately 30 to 40 daily there that come and go.  They might be there two days, be gone a couple of weeks, and come back another couple of days.  So it would be hard for any random drug testing to be performed on these people.  They are coming in more and more every day.  There is a total of, like, 17 different contracting companies that come in and out of the property.
		I also feel that the drug policy should also be put in effect for the supervisory right up to the head man because he makes decisions on a daily basis that can affect our safety and health in that mine.  He is responsible for all of us and all of our safety, and I feel that if he would be under the influence and not be thinking clearly, he could make a very, very disastrous decision that could affect us.
		I don't agree with the two hours of training for a supervisor, to let them make the call on whether a person shows signs of being under the influence.  I think this should be left up to a professional.  If we do have somebody staggering around, falling into the line of machinery, that's a little different, but I don't think a supervisor with two hours of training should be qualified to make this decision.
		To me, that would be like giving a person a two-hour crash course in surgery with a hand on the scalpel.  It's no different.
		I suggest that we concentrate on the hazards that do exist in the mines and have existed in the mines and that's led up to disasters like Sago and Aracoma, and the number of contractors that work side by side with us in these mines.
		I think that's all I have.  I thank you very much for your time.
		MS. SILVEY:  Thank you, Ms. James.
		Anybody else there in Pittsburgh?  Since we're in Pittsburgh now, we may as well take --
		MR. BOWERSOX:  I believe that's it.  I appreciate your time.
		MS. SILVEY:  Anybody else in Pittsburgh who wishes to comment?
		(Discussion held off the record.)
		MS. SILVEY:  Okay.  I just wanted to make sure.
		(Discussion held off the record.)
		MS. SILVEY:  Okay.  Thank you all very much.  We appreciate your comments.
		We will now go to Madisonville, Kentucky.  Do we have Madisonville?
		MR. O'NEAL:  Hello?
		MS. SILVEY:  Yes.  Is this Madisonville?
		MR. O'NEAL:  Yes.
		MS. SILVEY:  Please do.
		MR. O'NEAL:  Okay.  My name is Tony O'Neal.  That's O'-N-E-A-L.  I would like to start out by saying we stand with our brother, Dennis O'Dell, and, here in Kentucky, we're appalled by the way that our brothers and sisters in the State of Alabama have been treated today, and I'll go on.
		I'm here today representing the United Mine Workers of America to talk about the proposed rule for alcohol-free and drug-free mines.
		Through our representatives on the Kentucky State Mining Board, the United Mine Workers helped to get a very effective drug-testing program in our mines in Kentucky.  We are not opposed to drug testing or doing whatever needs to be done to help keep all miners safe.
		We just do not think this proposal is needed at this time.  We feel it is a repetition or regulations that are already in effect in most mining operations and, as it is written, will not best serve miners, as a whole.
		First, MSHA's introduction presents statistics about drug and alcohol use but not all of the facts about linkage of abuse to mining accidents.  Although no one condones any drug and/or alcohol use by miners, there is no hard evidence that the preemployment and random-testing procedures that 80 percent of the coal industry has currently in place are not working to keep that abuse out of the workplace.
		Second, the rule would apply to those miners who perform safety-sensitive job duties and their supervisors.  There are several problems with this.
		First, why target specific jobs?  Every person that drives onto the parking lot performs safety-sensitive job duties.  It is important that the person that orders the supplies is as clear headed as the miner man himself.
		Next, according to the rule, supervisors themselves would be the ones in charge of detecting when a reasonable suspicion occurs and requesting for a miner to be tested.  The rule does not outline clearly enough the training required for that supervisor.  It speaks of a two-hour training, most likely a videotape, and we do not feel that this will qualify them to make this determination.
		This real clearly includes the supervisors to be subjected to the testing also but makes no provisions as to how that will take place.  It does not provide for a third-party referral to which a mine could refer a supervisor who has demonstrated a reasonable suspicion of being under the influence.
		Since Section 66.307 clearly states that the rule leaves it to the mine operator's discretion to determine who should be trained and authorized as a supervisor to make the determination, that leads you to believe that no miner would have the right to make that determination about a supervisor.
		In the State of Kentucky, 40 certified mine foremen were reported for drug and/or alcohol policy violations.  Of the 40, four of their certificates were rescinded, and 36 were suspended.  It is clear that people in a supervisory position are not exempt from this type of abuse.
		Another problem with this rule is in the testing after an accident.  No one wants to know the cause of an accident more than the United Mine Workers.  In Section 66.306, this rule states:  "The proposed rule leaves the decision about who must be tested to the mine operators.  This is clearly unacceptable."
		As I stated earlier, there have been no hard facts to link alcohol and drug abuse to accidents, but there has been evidence of mine operator neglect as a direct cause of accidents.  With that in mind, why would we allow a rule to be put in place that would give the operators the sole decision in this situation?  It makes no sense.
		It does go on to say that MSHA may give its investigators the authority to test others after they arrive on the scene, but will that be too late?  Will suspicion already be cast on others, maybe even the deceased, causing undue additional grief?
		Follow-up is also a problem with the rule.  The rule does not discuss what would happen after the first positive test.  It does require each mine to implement an alcohol- and drug-free program.  However, this program, in itself, does little to ensure that each individual miner that may have a drug and/or alcohol problem gets the medical and mental health care they need to fully recover, nor does it do anything to ensure their job during their recovery, even if they follow a prescribed plan.
		With all of that said, one of the major problems with the rule is that too many resources, time, and money have been spent, and will be spent, on it when it could be better spent in areas in the mining industry that need more attention; namely, black lung.
		Again, no one is burying their head in the sand and saying alcohol and drug use doesn't happen.  There just isn't enough data to support spending government resources to duplicate what has already been done to address the problem.
		Data, however, published by NIOSH does show that black lung is on the rise, and the use of government resources for improving problem areas would be more productive and save more lives.  Thank you for your time.
		MS. SILVEY:  Thank you.  I don't have any questions, Mr. O'Neal.
		MR. O'NEAL:  Thank you.
		MS. SILVEY:  Is there anybody else in Madisonville who wishes to make comments?  I'm sorry.  Did anybody else here have any questions or comments?
		MR. O'NEAL:  We don't have anybody else.
		MS. SILVEY:  Nobody else in Madisonville?
		MR. O'NEAL:  No, ma'am.
		MS. SILVEY:  Okay.  If nobody else is in Madisonville, we'll go to Beckley.  Beckley?
		MR. HOSKINSON:  Yes, ma'am.
		MS. SILVEY:  Okay.  I have Beckley.  Is Steve Hedgekison there?
		MR. HOSKINSON:  Yes.
		MS. SILVEY:  Okay.
		MR. HOSKINSON:  I would like to start off by saying that I don't nearly have the credentials of the speakers before me.  I'm nothing but a safety trainer.  I was operating through a community college for 10 years doing mining safety training for surface and underground.  The majority of the people we deal with are metal/nonmetal; they are not coal.
		MS. SILVEY:  Okay.
		MR. HOSKINSON:  I have since then opened my own company up and have gotten led a little bit toward the oil and gas industry, but I want to keep up my mining credentials, and I thought this comment thing was pretty interesting.
		I, actually, was brought here by some people, and this is the side of the story that nobody has told or talked about, who actually are in the drug-testing industry, and when they saw this proposal, what they might have thought of it.
		First of all, I would like to comment and say that I've probably trained -- I don't know -- 1,000 to 1,500 people last year, and this has been a topic that's been tossed in metal/nonmetal for quite some time, and the general feeling there is, "Why do we have to do this because we already do?"
		A lot of these facilities have truck drivers that are already doing DOT drug testing, and, as a result, if they make anybody do it, they make the entire facility do it.  It's been working, and they feel that they have done a pretty good job with it.
		So, at least on the metal/nonmetal side, a lot of these people are trying to figure out why we have to do this now, and are they going to have to change their policies, depending on whatever MSHA should come up with, as far as the ruling?
		As far as the DOT stuff, DOT is yet another organization of the government, and they seem to have established a pretty good plan for drug testing, and that is, anybody doing DOT work -- now I'm not just talking about truck drivers here because DOT has authority over the entire oil and gas industry as well, which represents a sizable amount of workers in the United States, and their basic policy is a 50-percent test done random during the course of the year with a zero-percent-tolerance policy, and that's tough, but it's worked for oil and gas industry pretty well.
		The people who approached me are actually one of the larger drug-testing consortiums in the United States for that industry and have their concerns about what they feel that this rule needs to do and what they might want to change at it.  Their biggest concern is that they can expand the panel to include all of the drugs that are listed that MSHA wants to test for.  That's not an issue.
		What they have an issue for is the responsibility that's being put on a medical review officer, and that is that it's up to that medical review officer, if we're dealing with prescription drugs, and this individual has a valid prescription, and he can show that he is on a doctor's care for it, their question is that at what point does that person become impaired, according to the law, and under what authority would a medical review officer be able to make that determination because he is not a toxicologist?
		What they want to see is they want that determination made by the family doctor of the person who is under the care.  There is a point given.
		I'm a guy that's about 250 pounds.  We have a guy over here who is maybe 150 pounds.  We both have a back injury.  We take the same drugs, the same prescription strength.  They may or may not work.  My doctor decides that, because I'm a bigger guy, I need to take three pills a day instead of two.  Now, does that make me drug impaired over him or not?  I don't think even a medical review officer can tell that.
		The next thing is, what about the small guy over there?  He has had a back problem for 10 or 12 years, and he has had to continually take something in order to be able to work.  Maybe he is up to 10 or 12 pills a day, and he can function just fine under that particular level of medication.  But you see, as long as it's being closely monitored by the doctors that he deals with, you know, it's up to them.
		It's kind of unfair to put the responsibility or the legal liability, not even counting the HIPAA regulations, on a medical review officer because they don't have the firsthand authority or the closeness that a doctor does.
		So those are some of the concerns, I guess, that they had.  They felt that the DOT is an organization of the government that has a well-proven plan, and why hasn't MSHA taken more of a view of what they are doing?  And the history and the overall record of the oil and gas industry has been proven to have come from a very dreary start to a very good finish, as of right now, and they are doing pretty good with it.
		One other thing that I had absolutely no idea about talking about but was something that I've heard repeatedly is contractors, and just like any other place in the metal/nonmetal mines in our state, especially in big things like cement plants, in particular, we're seeing that, because of employee benefits being so expensive, that they utilize outside contractors to come in and do the work that they used to have employees doing.
		We're talking both union facilities and nonunion facilities here, both having the issue of contractors coming in.
		I was talking to an individual the other day with a large cement company, and he says, "You know, I just can't keep track of these guys anymore."  Well, now there is the issue about drug testing that complicates the point even further because, if I have a contractor out, has he been tested?  Do I have the right to even ask it?  It brings up a lot of questions.
		The oil and gas industry, to combat that, they have come up with something, and this is but one of several organizations, but one of them is called IS Net Rule, and basically what they are is they are a clearinghouse for contractors, and the people say, "If you want to do work for us, you have to go through these things being set by them."
		Basically, at IS Net Rule, they say that you have to answer a lot of questions about your company, including what your current drug-testing policies are, whether you're doing DOT or non-DOT drug testing, and it's not a choice; it's mandatory that you be able to show that.
		The next thing is they will ask about accident logs and records, whether they are MSHA or OSHA logs, and they want to know what your mod. rates are, your employee modification for your insurance rate.  In other words, "Are you over one?  Are you .8, or whatever?" because that gives them an overall view of the safeness of your company.
		If they were to start utilizing things like this a little more, these guys wouldn't have to have all of that burden on their shoulders, and that's going to be voluntary for the industry to do that.
		From MSHA's standpoint, I guess my final thing is that a lot of guys don't feel that it's broke.  If MSHA thinks that it is, that it needs to be fixed, maybe they need to take a little closer look at what the DOT has done because a good majority of the people out here are already doing work under DOT already.  I guess that's all I have to say.
		MS. SILVEY:  Okay.  Thank you, Mr. Hoskinson.
		Does anybody have any comments?
		(Discussion held off the record.)
		MS. CARR:  Mr. Hoskinson?
		MR. HOSKINSON:  Yes.
		MS. CARR:  This is Elena Carr from the Department of Labor.  Just one clarification.
		You were describing the burden that would be on the MRO to make determinations of impairment --
		MR. HOSKINSON:  Yes.
		MS. CARR:  -- and suggesting that we follow more closely the DOT regulations in that area.  The rules does follow the DOT regulation and does not require the MRO to make actually a rule of impairment but, rather, just to verify that that individual is using the drug according to prescription.
		I agree, there is a burden there because there are more drugs that they are required to do that for, but I just wanted to clarify that the role of the MRO is not one of determining impairment.
		MR. HOSKINSON:  Okay.  I think it was the level of impairment that they were worried about.  They still have to put that on the doctor.
		MS. CARR:  That is a thing that a personal physician might do, but it's not a requirement that the MRO make that determination.  He is allowed, just as in DOT, if he takes note that the individual is taking no prescription drug that could cause impairment, he is allowed to notify someone, who would then make a fitness-for-duty determination separately, but it is not the responsibility of the MRO to do that.
		MR. HOSKINSON:  Okay.
		MS. SILVEY:  I don't think we have any more comments.
		Is Mr. Miller in Beckley, Bill Miller?
		MR. HOSKINSON:  He left.
		MS. SILVEY:  He left?  Is there anybody else in Beckley who wishes to make comment?  Nobody else?
		A PARTICIPANT:  I think we're good here.
		MS. SILVEY:  Okay.  Thank you.
		We'll now go to -- I think I finished Price.  Is anybody still in Price, Utah?  Is anybody in any of the locations that are online now?  Is anybody left?  I'm looking at Pittsburgh.  Not in Pittsburgh?  Nobody in Birmingham.  Right?  Okay.  Nobody in Birmingham, I take it.  Nobody in Price, Utah.  Nobody in Denver.  Is anybody in Denver?
		A PARTICIPANT:  We're here, but there is no comment.
		MS. SILVEY:  No comments.  Right.  No comments.  It seems like I hear noise from somewhere, but I assume that wherever I hear the noise from, nobody wishes to make any additional comment or testimony.
		Does anybody else here?  Oh, I'm sorry.  I am so sorry.  Jim wishes to make testimony.  Please, Jim, come forward.  Thank you.  Jim Sharpe from Sharpe Media, Inc.
		MR. SHARPE:  Yes.  I'm from Safety, Health in Mining called "Sharpe's Point," and I'm sure everybody is delighted to see me, since I guess I'm the last of the last.  Right?
		If I would have started first, then we could have left a lot earlier.
		I am not testifying here, either pro or con, for or against, this rule.  My comments, I would like to limit to the 49 C.F.R., Part 40, the Department of Transportation regulation, which has been incorporated into the rule.
		I just want to say that the rule itself is six and a half pages, but this Part 40 runs for about a hundred, single spaced, and I swear it's 10-point font.
		I decided to devote all of yesterday to get through it to prepare for the hearing today, and I only got halfway through it.  It's a formidable document, and it certainly will scare away a lot of folks, and some of what I heard here today indicates that those people who say they follow Part 40 don't really know some of what Part 40 says, and I can understand that because it's so prescriptive and so long and detailed.
		So the fact that you're incorporating it by reference, I think, it's not a smooth transition, and I just want to explain why I say that.  My comment earlier about only getting halfway through means that what I'm about to say only covers the first half of it so that the comments would probably be twice as long, had I been able to get through the whole thing, which I'm sure you're glad I didn't.
		First of all, there is a tremendous number of acronyms in this Part 40, and it seems like maybe half of them were all thrown together in one sentence on page 54, which reads as follows:  "As an ASD manufacturer, you must submit for NHTSA approval a QAP of your ASD before NHTSA places the ASD on the CPL."
		MS. SILVEY:  Were you doing this for "Saturday Night Live"?
		MR. SHARPE:  That's under Part 40.235, just an example of some of the problem here, but let me get more specific.
		"Regarding Subpart R --" I'm going to go through this as a series of questions to you and to the record "-- does MSHA have the authority to initiate public-interest exclusions?"  That's the "PIE" acronym.  If not, consider deleting this subpart.  I would recommend that you consider deleting it.
		"If Part 40 is to become an MSHA rule, what is the purpose of including references to DOT's ODAPC?" which stands, I think, for "Office of Drug and Alcohol Policy and Compliance."  You might consider deleting that to minimize confusion because you say change "DOT" to "MSHA," but you don't say anything about ODAPC, and I'll be referencing this a couple of more times as we go through.
		40.7 is confusing because it says:  "Exemptions are to go through the Office of the Secretary of Transportation under a separate Part 5."  Well, of course, the Secretary of Transportation reference is irrelevant for purposes of MSHA rulemaking, and now does this mean that this separate Part 5 is also incorporated by reference?  Again, it's something that should be addressed.
		"Under 40.21, which refers to 'standing down an employee before the MRO has completed the verification process,' if an operator seeks an exemption, to whom is that exemption to be addressed, and to whom does 'an administrator' refer to in this provision?"
		Question No. 5:  "Must the employer use the form and instructions in Appendix H to report MIS data to MSHA, as 40.26 requires?"  That form, by the way, is one page long with six and a half pages of instructions, and OMB says it will take an hour and a half, on average, to complete it.  I think it took an hour and a half alone just to read the instructions.
If not, the final rule should address this.
		Question 6:  "If one substitutes the word 'MSHA' for 'DOT' in 40.33(a), it reads that 'MSHA has published urine specimen collection procedures guidelines which are available at,' and then it gives the website."  But when I substitute "MSHA" for "DOT" in the website, there is no such website.
		Number 7:  "40.33 requires maintenance of an extensive set of documentation pertaining to collector training, yet no mention of this is made in MSHA's proposed rule.  If an operator chooses to assign an employee as collector, will the operator be cited if this information is not available, even though the record-keeping requirements, under Subpart F of MSHA's proposal, doesn't mention it?"
		Number 8:  "As in Question 6, there is no CCF form at --" and then there is a website given again "-- if you substitute 'MSHA' for 'DOT,' it doesn't exist."  So there is no CCF form there.  So if somebody is referencing Part 40, they are just unnecessarily confused.
		"In at least one place, 40.81(d), reference is made to 'the department.'  Again, is that MSHA?"
		Question 10:  "40.103 says, 'an employer' with an aggregate of 2,000 or more covered employees must participate in a blind specimen program.  In this context, how does MSHA define 'employer'"?
		Question 11:  "40.105 requires the employer to notify ODAPC if the lab reports a false positive, adulterated, or substituted result for a blind specimen.  Phone number and website address are provided.  Is it your intent to change that to an MSHA location, and, if not, what authority would ODAPC have over an MSHA-covered mine operator?"
		Question 12:  "40.107.  If you do not plan to inspect laboratories, you may wish to delete this provision or modify it.  ODAPC is mentioned in it as well."
		"40.111.  Is it your intent for laboratories to send you aggregate data on a semi-annual basis, as 40.111(d) requires?  If so, what if what they report differs from what you require in Subpart F?" again referencing 40.111.
		"The aggregate statistical summary required to be sent to employers by the laboratory differs from what you require.  You would do a service to operators to amend this section to include what you require."
		Question No. 15, or Concern No. 15 involves 40.121(a)(3), where it talks about "MSHA MRO guidelines and where they can be obtained; that is, from ODAPC.  If there are no MSHA MRO guidelines, this provision should be amended."
		"40.121 requires the MRO to take a qualifications exam after being given training on MSHA's drug program.  How do you plan to accomplish this?"
		"40.123.  The MRO has responsibility to consult with MSHA to resolve a program issue.  Who would MSHA need to consult with, and how is this contact to be provided them?"
		"40.127 suggests you will review CCFs kept by MROs for compliance with Part 40.  Do you really plan to do that?"
		"40.145(g)(5) requires the MRO to notify ODAPC in writing.  This pertains to the MROs verifying test results involving adulteration or substitution.  If this is not who you want notified, you should amend the provision accordingly."
		"40.213.  Several references to ODAPC should be addressed "ODAPC" referenced in 40.225, and 40.281 also should be addressed."
		"40.283, pertaining to the SAP-certifying organizations, appears to be inapplicable."
		And, last:  "The MIS Data Collection Form lists DOT agencies, not MSHA, and thus should be amended."  Thank you.
		MS. SILVEY:  Okay.  Thank you, Jim.  We appreciate your comments.
		At this point, is there anybody else in this room who wishes to make testimony?
		(No response.)
		MS. SILVEY:  If there is nobody else in this room or at any of the locations who wishes to provide comment or testimony, I would like to say that we, the Mine Safety and Health Administration, appreciate your input in this rulemaking.  We appreciate people who came today and provided testimony.  We appreciate people who came and did not provide testimony but were in attendance because that shows their interest in the rulemaking.
		And, more significantly, we appreciate the people who came and were not able to get into our facility in Birmingham, and we are trying to determine a way that we can get testimony from the members who would like to do so.
		At the beginning of the opening statement, I informed everybody that the comment period is scheduled to close on October 29th, and for people who are intending to get in more comment prior to that time, 12:00 midnight, Eastern Daylight Savings Time, we would encourage you to do so.
		At this time, the Mine Safety and Health Administration's public hearing on "The Proposed Rule on Alcohol- and Drug-free Mines:  Policy, Prohibitions, Testing, Training, and Assistance," is now closed.  Thank you.
		(Whereupon, at 5:02 p.m., the hearing in the above-entitled matter was concluded.)
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	REPORTER'S CERTIFICATE
DOCKET NO.:	--
CASE TITLE:	30 C.F.R. PARTS 56, 57 AND 66 
			ALCOHOL AND DRUG-FREE MINES:   
			POLICY PROHIBITIONS, TESTING, 
			TRAINING AND ASSISTANCE
			PROPOSED RULE 
HEARING DATE:	October 14, 2008
LOCATION:		Washington, D.C.

		I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and notes reported by me at the hearing in the above case before the United States Department of Labor, Mine Safety and Health Administration.


				Date:  October 14, 2008

				                             
				Mona McClellan
					Official Reporter
				Heritage Reporting Corporation
				Suite 600
				1220 L Street, N.W.
				Washington, D.C.  20005-4018
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