52136 Federal Register / Vol. 73, No. 174 / Monday, September 8, 2008 / Proposed Rules 

1The 2006 National Survey on Drug Use and 

Health (NSDUH) is the annual survey and primary 

source of information on the use of illicit drugs, 

alcohol, and tobacco in the civilian, noninstitutionalized population of the United States 

aged 12 years or older. 

2The survey defined current illicit drug use as the 

non-medical use of marijuana/hashish, cocaine 

(including crack), heroin, hallucinogens, inhalants 

DEPARTMENT OF LABOR 

Mine Safety and Health Administration 

30 CFR Parts 56, 57, and 66 

[1219–AB41] 

Alcohol- and Drug-Free Mines: Policy, 

Prohibitions, Testing, Training, and 

Assistance 

AGENCY: Mine Safety and Health 

Administration (MSHA), Labor. 

ACTION: Proposed rule. 

SUMMARY: The proposed rule would 

replace the existing metal and nonmetal 

standards for the possession and use of 

intoxicating beverages and narcotics and 

establish a standard for all mines. The 

proposed rule would designate the 

substances that cannot be possessed on 

mine property or used while performing 

safety-sensitive job duties, except when 

used according to a valid prescription. 

Mine operators would be required to 

establish an alcohol- and drug-free mine 

program, which includes a written 

policy, employee education, supervisory 

training, alcohol- and drug-testing for 

miners that perform safety-sensitive job 

duties and their supervisors, and 

referrals to assistance for miners who 

violate the policy. The proposed rule 

would also require those who violate 

the prohibitions to be removed from the 

performance of safety-sensitive job 

duties until they complete the 

recommended treatment and their 

alcohol- and drug-free status is 

confirmed by a return-to-duty test. 

DATES: All comments must be received 

by midnight eastern standard time on 

October 8, 2008. 

ADDRESSES: Comments must be clearly 

identified with ‘‘RIN 1219–AB41’’ and 

may be sent by any of the following 

methods: 

(1) Federal e-Rulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

(2) Electronic mail: zzMSHAcomments@dol.gov. Include ‘‘RIN 1219– 

AB41’’ in the subject line of the 

message. 

(3) Facsimile: 202–693–9441. Include 

‘‘RIN 1219–AB41’’ in the subject line of 

the message. 

(4) Regular Mail: MSHA, Office of 

Standards, Regulations, and Variances, 

1100 Wilson Boulevard, Room 2350, 

Arlington, Virginia 22209–3939. 

(5) Hand Delivery or Courier: MSHA, 

Office of Standards, Regulations, and 

Variances, 1100 Wilson Boulevard, 

Room 2350, Arlington, Virginia. Sign in 

at the receptionist’s desk on the 21st 

floor. 

Comments can be accessed 

electronically at http://www.msha.gov 

under the Rules and Regs link. MSHA 

will post all comments on the Internet 

without change, including any personal 

information provided. Comments may 

also be reviewed at the Office of 

Standards, Regulations, and Variances, 

1100 Wilson Boulevard, Room 2350, 

Arlington, Virginia. Sign in at the 

receptionist’s desk on the 21st floor. 

MSHA maintains a list that enables 

subscribers to receive e-mail notification 

when rulemaking documents are 

published in the Federal Register. To 

subscribe, go to http://www.msha.gov/ 

subscriptions/subscribe.aspx. 

Information Collection Requirements: 

Comments concerning the information 

collection requirements of this proposed 

rule must be clearly identified with 

‘‘RIN 1219–AB41’’ and sent to both the 

Office of Management and Budget 

(OMB) and MSHA. Comments to OMB 

may be sent by mail addressed to the 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget, New Executive Office Building, 

725 17th Street, NW., Washington, DC 

20503, Attn: Desk Officer for MSHA. 

Comments to MSHA may be transmitted 

either electronically to zzMSHAcomments@dol.gov, by facsimile to 

(202) 693–9441, or by regular mail, hand 

delivery, or courier to MSHA, Office of 

Standards, Regulations, and Variances, 

1100 Wilson Blvd., Room 2350, 

Arlington, Virginia 22209–3939. 

FOR FURTHER INFORMATION CONTACT: 

Elena Carr at carr.elena@dol.gov (Email), 202–693–5959 (Voice). 

SUPPLEMENTARY INFORMATION: The 

outline of this proposal is as follows: 

I. Introduction 

II. Background 

III. Discussion of the Proposed Rule 

A. Nature, Extent, and Impact of the 

Problem 

B. Effective Strategies for Addressing 

Alcohol and Drug Problems in Mining 

C. Basis of Proposal 

IV. Section-by-Section Discussion 

V. Executive Order 12866 

A. Population at Risk 

B. Benefits 

C. Compliance Costs 

D. Feasibility 

VI. Regulatory Flexibility Act and Small 

Business Regulatory Enforcement 

Fairness Act 

A. Definition of a Small Mine 

B. Factual Basis for Certification 

VII. Paperwork Reduction Act 

VIII. Other Regulatory Considerations 

A. The Unfunded Mandates Reform Act of 

1995 

B. The Treasury and General Government 

Appropriations Act of 1999: Assessment 

of Federal Regulations and Policies on 

Families 

C. Executive Order 12630: Government 

Actions and Interference with 

Constitutionally Protected Property 

Rights 

D. Executive Order 12988: Civil Justice 

Reform 

E. Executive Order 13045: Protection of 

Children from Environmental Health 

Risks and Safety Risks 

F. Executive Order 13132: Federalism 

G. Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. Executive Order 13272: Proper 

Consideration of Small Entities in 

Agency Rulemaking 

IX. Proposed Rule 

I. Introduction 

The Mine Safety and Health 

Administration’s (MSHA) mission is to 

administer and enforce the provisions of 

the Federal Mine Safety and Health Act 

of 1977 (Mine Act), as amended by the 

Mine Improvement and New Emergency 

Response Act of 2006 (MINER Act), and 

includes promoting improved safety and 

health conditions in the nation’s mines. 

Under the Mine Act, MSHA is required 

to develop improved mandatory safety 

and health standards for coal and metal/ 

nonmetal mines. The misuse of alcohol 

and/or drugs is a risk to miner safety. 

Because mining is inherently dangerous, 

MSHA is proposing a standard to 

address this risk. 

Currently, MSHA’s mine accident 

investigations do not routinely include 

inquiries into the use of alcohol or drugs 

as contributing factors. Consequently, 

there may have been accidents in which 

alcohol or drugs were involved but were 

not reported to inspectors or identified 

during MSHA investigations. A 

preliminary review of fatal and non-fatal 

mine accident records revealed a 

number of instances in which alcohol or 

drugs or drug paraphernalia were found 

or reported, or where the post-accident 

toxicology screen revealed the presence 

of alcohol or drugs. 

The U.S. Department of Health and 

Human Services, Substance Abuse and 

Mental Health Services 

Administration’s (SAMHSA) 2006 

National Survey on Drug Use and 

Health 1 reports that in 2006, of the 17.9 

million illicit drug 2 users age 18 and 


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or prescription-type drugs. Non-medical use is 

defined as the use of prescription-type drugs not 

prescribed for the respondent by a physician or 

used only for the experience or feeling they caused. 

Non-medical use of any prescription-type pain 

reliever, sedative, stimulant, or tranquilizer does 

not include over-the counter drugs. Non-medical 

use of stimulants includes methamphetamine use. 

3Substance Abuse and Mental Health Services 

Administration (2007). Results from the 2006 

National Survey on Drug Use and Health: National 

Findings (Office of Applied Studies, NSDUH Series 

H–32, DHHS Publication No. SMA 07–4293). 

Rockville, MD. 

4 Ibid. 

5 Ibid. 

6 Ibid. 

7Weber, W., and Cox, C. ‘‘Work-Related Fatal 

Injuries in 1998,’’ Compensation and Working 

Conditions, Spring 2001, pp. 27–29. 

8 Ibid. 

9Substance Abuse and Mental Health Services 

Administration (2007). The Worker Substance Use 

and Workplace Policies and Programs Report 

presents findings on substance abuse among 

workers and on workplace drug policy and 

programs from the 2002, 2003, and 2004 National 

Surveys on Drug Use and Health. (Office of Applied 

Studies, Analytic Series: A–29.) 

10The Standard Occupation System categorizes 

occupations into 21 groups. The Construction 

Trades and Extraction Workers group includes 

mining. 

11The NAICS, which replaced the Standard 

Industry Classification (SIC), categorizes all 

industries into 19 major groups and is used to 

classify industries in the Report. 

12This summit was hosted by the states of 

Kentucky, Virginia and West Virginia and by the 

U.S. Department of Labor, Mine Safety and Health 

Administration. 

13Public Law 91–173, as amended by Public Law 

95–164. 

14The U.S. Department of Transportation’s drugtesting regulations (49 CFR part 40) and several 

mode-specific regulations were published in 1988 

and were initially based on the agency’s general 

Continued 

over, 13.4 million (74.9 percent) were 

employed.3 Similarly, among 54 million 

adult binge drinkers, 42.9 million (79.4 

percent) were employed, and among 

16.3 million persons reporting heavy 

alcohol use, 12.9 million (79.2 percent) 

were employed.4 Also, in 2006, of the 

20.6 million adults classified with 

substance dependence or abuse, 12.7 

million (61.5 percent) were employed 

full-time.5 Furthermore, among the U.S. 

working age population (ages 18–64) 

diagnosed with a substance use 

disorder, 62.7 percent were employed 

full-time.6

According to a 1998 analysis of 

available toxicology reports across a 

variety of occupations and within 

different industries, the Bureau of Labor 

Statistics (BLS) estimated that as many 

as one in five workplace fatalities had 

a positive test for alcohol or drugs.7 BLS 

reported that alcohol was the substance 

found most often, appearing in 48 

percent of positive reports.8

SAMHSA’s June 2007 Worker 

Substance Use and Workplace Policies 

and Programs Report 9 shows alcohol 

and other drug use and abuse by 

standard occupational and industry 

classifications. Illicit drug use was 

reported at 15.1 percent and heavy 

alcohol use was reported at 17.8 percent 

among full-time workers aged 18–64 in 

the construction, trade, and excavation 

occupational group.10 The data also 

show that in the mining 11 industry, 13.3 

percent of full-time miners were heavy 

alcohol users and 7.3 percent admitted 

that they used illicit drugs within the 

past month. This does not mean that 

those surveyed admitted to either being 

under the influence or having used 

alcohol or drugs at work or immediately 

prior to work. However, the statistics do 

suggest a cause for employer concern 

since there are no guarantees that those 

who drink heavily or abuse drugs will 

constrain such behaviors, which have 

the potential to seriously jeopardize 

mine safety, to off-duty hours. 

Using alcohol and/or drugs can affect 

a miner’s coordination and judgment 

significantly at a time when he or she 

needs to be alert, aware, and capable of 

performing tasks where there is 

substantial risk of injury to oneself or 

others. Even prescription medications 

may affect a miner’s perception and 

reaction time. Mining is a complicated 

and hazardous occupation, and a clear 

focus on the work at hand is a crucial 

component of mine safety. Miners under 

the influence of alcohol and/or 

prohibited drugs endanger themselves 

as well as their co-workers. This is of 

particular concern since many fatal and 

non-fatal mining accidents involve the 

operation of some type of equipment, 

tool, or machinery. 

A number of mine operators recognize 

this problem, and require applicants for 

employment to submit to and pass a 

pre-employment drug screening. At the 

Keeping America’s Mines Alcohol and 

Drug Free summit held on December 18, 

2004, some mine operators stated that a 

number of job applicants are unable to 

pass the initial drug screen.12

To the extent that misuse of alcohol 

and/or abuse of drugs by miners is 

prevalent in the community, as 

evidenced by the survey data referenced 

above, and given the inherent risks in 

mining that would only be compounded 

by the dangers of alcohol or drug use at 

the worksite, MSHA has determined the 

need to protect the safety of all miners 

by issuing a rule that prohibits miners 

from using, possessing, or being under 

the influence of alcohol or drugs when 

performing safety-sensitive job duties. 

II. Background 

The Mine Act 13 expressly states that 

the health and safety of the miner is the 

first priority and concern of all in the 

coal or other mining industry. The 

prevention of deaths and serious 

injuries from unsafe and unhealthful 

conditions and practices in the coal or 

other mines continues to be one of the 

many priorities of the Act. Section 

101(a) of the Act authorizes the 

Secretary of Labor to develop, 

promulgate, and revise as may be 

appropriate improved mandatory health 

or safety standards for the protection of 

life and prevention of injuries in coal or 

other mines. 

The presence and use of intoxicating 

beverages and narcotics is currently 

prohibited in both the surface and 

underground metal and nonmetal mine 

regulations found at 30 CFR 56.20001 

and 57.20001. The current regulation 

states: ‘‘Intoxicating beverages and 

narcotics shall not be permitted or used 

in or around mines. Persons under the 

influence of alcohol or narcotics shall 

not be permitted on the job.’’ The 

regulations do not contain a similar 

requirement for coal mines. 

During the 30 years from 1978 to early 

2008, a total of 270 citations were issued 

for violations of these alcohol and drug 

prohibitions. Of these, 242 (89.6 

percent) were at surface mines and 28 

(10.4 percent) were at underground 

mines. Between January 1, 2000 and 

June 30, 2005, penalties were assessed 

for 75 violations of section 56.20001 and 

for three violations of section 57.20001 

of the regulations. 

Since the late 1980s, a proactive 

federal government has implemented a 

number of programs aimed at reducing 

the use of alcohol and drugs in the 

workplace. The Anti-Drug Abuse Act of 

1986 (Pub. L. 99–570), directed the 

Secretary of Labor to initiate efforts to 

address the issue. Subsequently in 1986, 

Executive Order 12564, Drug-Free 

Federal Workplace, established federal 

drug-free workplaces by making it a 

condition of employment for all federal 

employees to refrain from using illegal 

drugs. The Drug-Free Workplace Act of 

1988, 41 U.S.C. 701, et seq., required 

federal contractors and grantees to have 

drug-free workplaces, and the Drug-Free 

Workplace Act of 1998, 15 U.S.C. 654, 

established grant programs that assist 

small businesses in developing drugfree workplace programs. To protect 

public safety, the Omnibus 

Transportation Employee Testing Act of 

1991, Public Law 102–143, required 

transportation industry employers to 

conduct alcohol- and drug-testing for 

employees in ‘‘safety-sensitive’’

positions, creating a model that many 

non-regulated employers now follow.14


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safety responsibilities rather than as a response to 

specific statutory authorization. 

15The Department of Labor’s Working Partners 

program is an education and outreach initiative that 

equips employers and unions with information and 

tools to effectively address workplace alcohol and 

drug problems. 

16The public information gathering meetings 

were held in Salt Lake City, Utah; St. Louis, 

Missouri; Birmingham, Alabama; Lexington, 

Kentucky; Charleston, West Virginia; Pittsburgh, 

Pennsylvania; and Arlington, Virginia. 

17Although there are a variety of specialty 

certifications that miners are required to get in 

order to perform certain mining functions, only a 

handful of states (Kentucky, Virginia, West Virginia, 

Pennsylvania, Oklahoma, and Colorado) require a 

general miner certification in order to be employed 

as a miner. 

MSHA has addressed the issue of 

alcohol and drug misuse since the 

1990s. In recent years MSHA, in close 

collaboration with the Department of 

Labor’s (DOL) Working Partners 

program,15 has taken the lead and 

initiated a number of education and 

outreach efforts to raise awareness in 

the mining industry of the safety 

hazards stemming from the use of 

alcohol and drugs. MSHA and the 

Joseph A. Holmes Safety Association 

partnered and established the 

Professional Miner Program to recognize 

miners who have worked injury-free for 

at least three years. Miners who have 

been recognized as Professional Miners 

sign a pledge that includes a 

commitment to ‘‘work to ensure a safe, 

healthy, and alcohol- and drug-free 

workplace.’’ To date, approximately 

24,252 miners (roughly six percent of 

the mining workforce) have taken this 

pledge. 

Each of MSHA’s 51 metal and 

nonmetal program field offices routinely 

holds meetings that include 

presentations and discussions of alcohol 

and drug abuse to raise awareness and 

provide information to mine operators. 

MSHA also participates in a DOL drugfree workplace alliance that provides 

union members and the construction 

and mining industries with information, 

guidance, and access to training 

resources that will help them 

understand the benefits of drug-free 

workplace programs and protect 

employee health and safety. 

Since 2006, MSHA has encouraged 

mine operators and miners to 

participate in the National Drug-Free 

Work Week, which takes place in 

October. A number of mine operators 

have voluntarily implemented drug-free 

mine programs, and many report that 

these programs have improved mine 

safety and reduced workers’

compensation costs. In addition, some 

of these mine operators have told MSHA 

that employees at their mines are 

supportive of these programs. However, 

the adoption of these programs is far 

from being an industry-wide practice. 

Many miners, particularly those 

working in small mines, are not likely 

to have access to these programs. 

In December 2004, MSHA cosponsored with the states of Kentucky, 

Virginia, and West Virginia, a one-day 

summit for individuals involved with 

coal mining operations and activities in 

the Southern Appalachian region. The 

summit brought together industry, labor, 

state and federal government officials, 

and public health experts to share 

information, expertise, and experience 

in dealing with the misuse of alcohol 

and drugs by miners. At the summit, 

industry representatives expressed 

concerns about the problems related to 

the use of alcohol and drugs in mines. 

Several coal mine operators described 

the effectiveness of their drug-free mine 

programs and expressed their concern 

that such programs were not universal 

in the industry. Also at the summit, 

LaJuana Wilcher, Secretary of 

Kentucky’s Environmental and Public 

Protection Cabinet, announced plans to 

form a Mine Substance Abuse Task 

Force to address the increasing concern 

about alcohol and drug abuse in the 

mining industry. The Task Force, 

charged with gathering and evaluating 

pertinent information on substance 

abuse and its impact on the health and 

safety of miners, issued a Final Report 

in December 2005, which included 

recommendations for state and federal 

regulatory agencies as well as the 

mining industry on how to eliminate 

substance abuse among miners. 

Kentucky and Virginia have since 

adopted many of the recommendations 

in their new state laws that require 

drug-testing as part of the miner 

certification process. 

Because of concern that misuse of 

alcohol and drugs compromises miner 

safety, in October 2005, DOL published 

an advance notice of proposed 

rulemaking (ANPRM) entitled, ‘‘Use of 

or Impairment from Alcohol and Other 

Drugs on Mine Property,’’ to inform the 

public that MSHA was considering a 

rule to address substance abuse in the 

mines and to gather information. Seven 

public information gathering meetings 

were also held in October and 

November 2005 to get additional public 

input.16 Comments were sought on the 

following key issues: The nature, extent, 

and impact of the problem; what 

substances should be prohibited; how to 

address/determine impairment; whether 

training on workplace substance abuse 

should be required and, if so, what 

training should be required; whether/ 

how to address substance abuse in 

accident investigations; what the 

critical/effective elements of drug-free 

mine programs are; and what the costs/ 

benefits of requiring and/or 

implementing drug-free mine programs 

would be. 

Although many of those commenting 

through oral or written statements 

agreed that there is a need for MSHA to 

take action to address substance abuse 

in the mines, most reports were 

anecdotal and data were not provided to 

specifically quantify the extent of the 

problem in the U.S. mining industry. 

Since the ANPRM was published in 

2005, two states have passed drugtesting laws (Kentucky in July 2006 and 

Virginia in April 2007) that require 

miners to submit to drug-testing in order 

to obtain and maintain their state 

miner’s certification. A similar law was 

proposed in West Virginia in February 

2006, but was not adopted. A 

subsequent version was proposed in 

January 2008 and is currently under 

consideration by the West Virginia state 

House Judiciary Committee.17

The 2006 Kentucky law requires that 

all applicants for mining certifications 

pass alcohol- and drug-tests 

administered by the state before a 

certification will be issued. Tests are 

conducted for eleven drugs: 

amphetamines, barbiturates, 

benzodiazepines, cocaine, marijuana, 

methadone, methaqualone, opiates, 

oxycodone, phencyclidine, and 

propoxyphene. The law gives the state 

authority to conduct post-accident 

alcohol- and drug-testing in the event of 

a serious mine accident, serious 

physical injury, or fatality. Although the 

state law does not require mining 

companies to do so, those that adopt a 

drug-free mine program, certified by the 

state’s Office of Mine Safety and 

Licensing (OMSL), and include drugtesting and an employee assistance 

program (EAP), are eligible for a 5 

percent credit on workers’

compensation premiums. Mine 

operators are required to report miners 

who violate their substance abuse policy 

to the Kentucky OMSL. Although 

currently certified miners are not 

routinely tested by the state, the law 

requires annual education and training 

on alcohol and drug abuse for both 

miners and supervisors. 

Training must be conducted by 

approved sources and may be provided 

on the owner’s or licensee’s site or at a 

private training site. In addition, 

employers are required to pay the 

miners when they attend and pay for the 

training. The year 2007 marked the 


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18Number and Rate of Fatal Occupational 

Injuries, by Industry Sector, 2006—U.S. Bureau of 

Labor Statistics, U.S. Department of Labor. 

19 Ibid. 

20U.S. Department of Labor, Bureau of Labor 

Statistics, Census of Fatal Occupational Injuries, 

2006. 

21 Data are extracted from on-line tables from the 

SAMHSA 2002, 2003, and 2004 National Surveys 

on Drug Use and Health. 

22The sources include: The Washington Post, 

USA Today, The Charleston Gazette, The CourierJournal (Louisville, KY), Harlan Daily Enterprise, 

The State Journal (Charleston, WV), and Coal Age 

Magazine. 

lowest number of mining fatalities in 

Kentucky history and this law is 

credited with causing the improvement. 

In the time since the law was enacted, 

there have been seven fatal accidents. 

The required toxicology reports were 

completed in all cases and showed 

evidence of recent drug use in at least 

one of these fatal accident cases. 

According to Kentucky state officials, 

approximately 17,100 certified miners 

are actively working in Kentucky’s 526 

licensed mines. Since the drug-testing 

law was enacted, a total of 11,930 precertification tests have been conducted. 

The number of positive pre-certification 

tests is not known because of how 

Kentucky tracks the data. Since the 

law’s inception, there have been 459 

reported violations of the industry’s 

drug-free requirement, which have 

affected certifications as follows: 170 

certifications remain suspended, 109 are 

on probation, 56 have been rescinded, 

89 are revoked, 22 are permanently 

revoked, and 13 probationary periods 

were completed. Employers are not 

required to report or record the type of 

drugs for which miners tested positive. 

The 2007 Virginia law requires mine 

operators to implement a substance 

abuse screening policy and program for 

all miners. At a minimum, the programs 

must include a pre-employment, 11- 

drug urine test (the same panel that 

Kentucky uses). The law also requires 

that testing be conducted as part of an 

accident investigation if reasonable 

cause exists to suspect drug 

involvement or that drugs were a 

contributing factor to a serious accident. 

Mine operators are required to notify the 

state mining board of any failure of a 

pre-employment substance abuse 

screening test, or when a miner is 

discharged due to a violation of the 

company’s substance or alcohol abuse 

policies (e.g., a miner testing positive for 

intoxication while on duty status, or a 

miner testing positive for use of a 

prohibited substance without an 

appropriate prescription). Upon 

notification, any certifications held by 

the miner are temporarily suspended 

pending a hearing before the Virginia 

Board of Coal Mining Examiners. 

According to state officials, there are 

4,290 certified miners and 244 licensed 

mines in Virginia. To date, there have 

been 90 positive tests reported by 

companies and 3 positive tests reported 

as a result of an inspector-ordered test 

after an accident investigation. Of these, 

41 have had their certificate suspended 

(including those waiting for their 

scheduled hearings), 25 certificates have 

been revoked, and 19 have been reinstated. Twenty-nine miners have been 

referred to treatment. 

III. Discussion of the Proposed Rule 

A. Nature, Extent, and Impact of the 

Problem 

Employment in the mining industry 

during this decade has been steady at 

around 340,410 in about 23,054 mines 

(including contractors). In 2007, the 

Bureau of Labor Statistics reports that 

the industry sectors with the highest 

fatal occupational injury rates were 

agriculture, forestry, fishing and hunting 

(29.6 percent),18 mining (27.8 

percent),19 and coal mining (49.5 

percent).20 It should be noted that BLS 

data includes oil and gas extraction, 

mining, and support activities for 

mining. While the extent of the alcohol 

and drug problem in mining has not 

been directly measured, there appears to 

be abuse and negative consequences in 

mines. Abuse of alcohol and drugs is 

pervasive in society and mining 

worksites are not immune. In fact, many 

communities hard-hit by drugs are those 

where mining is the main industry. Data 

collected by SAMHSA from individuals 

employed in the mining industry 

suggest that a significant number of 

mine operators perform preemployment tests and perform random 

testing to discourage use among 

employed miners. Specifically, within 

the mining industry, nearly four out of 

five workers report that companies 

perform alcohol and drug tests on a preemployment basis, which is nearly 

double the reported all-industry 

average. Similarly, nearly three-quarters 

of those working in the mine industry 

report random testing, which is more 

than double the reported all-industry 

average (of nearly 30 percent). These 

data suggest that alcohol and drug use 

by miners is a significant enough threat 

to safety to compel mine operators to 

voluntarily choose to conduct alcoholand drug-testing.21

Since 2005, a number of media 

articles have highlighted drug use in the 

coal mines, with seven articles 

published since January 2007. The 

articles appeared mostly in local 

newspapers, covering situations in 

Virginia, Kentucky, and West Virginia.22

An extensive front-page article 

discussing drugs and drug addiction in 

the mines of western Virginia was 

published in The Washington Post in 

January 2008 and republished 

throughout various regional papers. 

Several articles suggest that miners 

misuse drugs (mainly prescription 

painkillers) after becoming addicted to 

them during treatment for chronic workrelated pain and injuries. 

Some articles also mention fatalities 

and serious injuries in three separate 

mining accidents where drugs were 

discovered on-site or observed via postaccident drug screening, even though 

the investigation reports did not 

necessarily consider drug use to be a 

contributing factor to the accidents. 

In the 2005 ANPRM, MSHA sought 

comments on the nature, extent, and 

impact of substance abuse in the mining 

workplace. The ANPRM also sought 

comments on the most prevalent 

substances used; how widely they are 

used in the mine; the severity of the 

risks associated with alcohol or drug use 

by mine workers; and the link between 

accidents or injuries and alcohol or drug 

use. 

Many of the 65 written and oral 

comments received from mine 

operators, mining associations, and 

mine workers acknowledge the 

existence of an alcohol and drug 

problem that endangers mine safety. 

The commenters cited a number of 

factors regarding the prevalence of 

alcohol or drugs in the mining 

workplace. Other commenters suggested 

that the geographic location of mines 

and whether mine operators are 

committed to testing and alcohol- and 

drug-free workplaces impacts the 

misuse of alcohol and drugs in the 

mining workplace. Two commenters 

stated that the use of illegal drugs was 

most prevalent among job applicants 

and new hires. Another commenter 

stated that alcohol abuse is a problem 

that most often affects older workers. 

A majority of the commenters agreed 

that the use or misuse of alcohol and 

drugs poses a severe or significant risk 

to miners’ safety. FMC Corp. stated that 

‘‘miners, both surface and underground, 

operate expensive and dangerous 

equipment on a routine basis, and the 

use of drugs or alcohol can severely 

impact an individual’s judgment and 

put co-workers and equipment at risk.’’

Another commenter, Graymont Western 

US, Inc., noted that ‘‘the severity of the 

risk imposed by a miner impaired due 

to alcohol or substance abuse cannot be 

overstated’’ and ‘‘the potential hazards 

associated with mining are known and 

well documented.’’ Thus, ‘‘permitting 

an impaired individual to work in an 


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52140 Federal Register / Vol. 73, No. 174 / Monday, September 8, 2008 / Proposed Rules 

environment where, for example, 

methane gas is liberated or on or around 

machinery capable of causing bodily 

harm cannot be tolerated.’’ The 

International Coal Group (ICG) 

‘‘believe[s] that the abuse of a controlled 

substance creates a very serious risk to 

the health and safety of all miners.’’ ICG 

further states that ‘‘the individual places 

themselves and others around them in 

a dangerous situation [and] [a]llowing 

an individual to work in an 

environment under the influence of a 

control[led] substance could affect the 

safe operation of machinery and the 

sound judgment needed to make critical 

decisions in performing all work task[s] 

in a safe manner.’’

A former Nevada underground miner 

suggested that the work shifts, travel 

time to and from work, lack of sleep, 

and chronic pain contribute to the abuse 

of alcohol and drugs by miners. Another 

commenter specifically stated that 

alcohol and drug abuse exists and that 

‘‘mining companies must deal with the 

amount of alcohol and drug abuse, the 

types of illicit drugs abused, and the fact 

that the amount and types of 

prescription drugs abused varies greatly 

by location and time.’’

The drugs of concern specifically 

mentioned by commenters include 

alcohol, marijuana, cocaine, opiates, 

methamphetamines, and prescription 

painkillers (notably methadone and 

oxycodone). Concern was expressed not 

only about the non-medical use of 

prescription painkillers, but also about 

the impact that legally used medications 

could have on impairment of job 

functioning. 

The United Mine Workers of America 

(UMWA), on behalf of the Navajo 

Nation, expressed concern about a lack 

of substantial evidence that would 

directly link a particular accident to the 

use of peyote or natural herbs. 

Furthermore, the UMWA also 

questioned the accuracy of some of the 

ANPRM preamble statements and 

indicated that they would like to see 

‘‘data that says where the problems are, 

and how they exist and what we should 

do from there.’’

Although a subsequent internal DOL 

review of accident reports failed to 

reveal a significant number of cases 

where alcohol or drugs were determined 

to be causative factors, it did reveal a 

lack of consistency in whether and how 

alcohol and drug tests are performed 

and in the investigative process used to 

determine whether alcohol or drugs may 

have been factors. In fact, currently 

accident investigations do not routinely 

include an inquiry into the use of 

alcohol or drugs and this is a failure that 

the proposed rule intends to address. 

Although there are limited data, 

anecdotal reports suggest a relationship 

between alcohol and drug use and mine 

accidents. Increased concern about the 

issue arose in 2003 after a blasting 

accident at an Eastern Kentucky coal 

mine (Cody Mining Co. in Floyd 

County) in which one miner was killed 

and another seriously injured. 

Marijuana was found at the scene, and 

a witness reported having seen the 

miners snorting crushed painkillers. An 

autopsy of the dead miner confirmed 

the presence of painkillers. The 

surviving miner was not tested, and 

there was no federal or state 

requirement to do so. In December 2005, 

a 29-year-old miner (at No. 3 Mine of 

HandD Mining, Inc.) died after an 

overloaded coal hauler severed his legs. 

Although no discussion was included in 

the fatality report about whether drug 

use may have contributed to the 

accident, the hauler’s driver and the 

dead miner both tested positive for 

painkillers and marijuana. 

Another incident occurred at Langley 

Hill Quarry where a truck driver 

apparently fell from a parked truck onto 

a concrete pad, sustained facial and 

skull fractures and died sometime later. 

The report noted that ‘‘medical records 

showed a blood alcohol concentration 

(BAC) level of 0.04 percent,’’ but went 

on to conclude ‘‘it could not be 

determined why or exactly from where 

[the driver] fell. There was no apparent 

need to have climbed onto the handrail 

or the rear of the truck.’’ No explanation 

was given for why the BAC level does 

not specifically appear in the 

conclusion as a causal or contributing 

factor despite the fact that a 0.04 percent 

BAC, under the DOT regulations, is 

considered high enough to cause 

impairment and is a violation of the 

DOT drug rule. 

At East Volunteer, a victim was 

operating a malfunctioning telescopic 

lift and was pinned between the lift 

platform rail and part of the ceiling 

infrastructure. The victim was noted in 

the report, under the ‘‘human factors’’

section, as having a toxicology analysis 

that ‘‘revealed methamphetamine 

intoxication,’’ but it was not mentioned 

in the root-cause analysis or conclusion. 

It is reasonable to question whether the 

victim’s intoxication may have 

impacted his observation skills as the 

malfunction was happening and 

possibly slowed his decision-making on 

how to respond. 

An alcohol- and drug-free mine 

program as proposed in this rule will 

contribute to the prevention of such 

incidents and provide all miners, 

regardless of what state they work in 

and the size of the mine they work for, 

equal safety protection from working 

alongside miners under the influence of 

alcohol and/or drugs on the job. More 

uniform testing and reporting would 

address the need to collect data about 

the frequency of post-accident tests that 

reveal alcohol or drug involvement. 

B. Effective Strategies for Addressing 

Alcohol and Drug Problems in Mining 

The ANPRM also sought data on the 

effectiveness of drug-free workplace 

programs to improve safety in the mine. 

Although numerous commenters 

expressed the belief that drug-free mine 

programs that include drug-testing and 

education were effective strategies for 

protecting mine safety, few compelling 

data were received. However, numerous 

mine industry employers and two state 

governments (Kentucky and Virginia, as 

discussed previously) have instituted 

drug-free mine programs that require 

drug-testing and have passed anti-drug 

laws specifically targeted to the mining 

industry and report success of these 

efforts. 

Several commenters cited their low 

number of positive results on postaccident alcohol and drug tests as 

evidence of the effectiveness of their 

overall drug-free mine programs. Oxbow 

Mining reported that ‘‘two relatively 

minor accidents occurred in which the 

injured tested positive for illegal drugs 

(THC/marijuana), [and] in both cases the 

injured were terminated from 

employment.’’ Another commenter uses 

post-accident testing and noted that ‘‘if 

we were not conducting this testing, it 

is reasonable to believe the problem 

would be much greater.’’

There was a general agreement that 

alcohol- and drug-free mine programs 

are desirable. Nonetheless several 

commenters opined that the issue of 

alcohol and drugs in the mine could not 

be solved through additional 

rulemaking. More than one commenter 

believed there was no reason for MSHA 

to issue regulations either because coal 

companies have already adopted or 

implemented drug-free workplace 

programs or because they do not believe 

the problem to be pervasive. Still others 

expressed support for regulations that 

would standardize the expectation and 

enforcement of an alcohol- and drugfree workforce throughout the industry. 

The comments did include widespread 

support for MSHA to provide 

educational information and resources 

that would allow mine operators the 

flexibility to develop programs tailored 

to the needs of their workers and 

specific worksites. 


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C. Basis of Proposal 

Mining is inherently dangerous and 

the misuse of alcohol and drugs 

increases the risk of accident, injury, or 

death. It is reasonable to expect that any 

diminution of a miner’s attentiveness, 

concentration, dexterity, balance, or 

reaction time could play a contributing, 

if not causative, role in an accident. No 

one disputes that a miner who is under 

the influence of alcohol and/or drugs is 

an unacceptable safety risk. Though 

some mine operators have programs in 

place to address this hazard, the 

implementation of alcohol- and drugfree mine programs is far from 

universal. There is a need for 

consistency and uniformity across all 

types of mining environments (whether 

coal or metal/nonmetal, surface or 

underground) with regard to the 

regulatory prohibitions against alcohol 

and drugs. 

The proposed rule would provide a 

consistent baseline for the mining 

industry and afford safety for all miners. 

Only two states currently require such 

programs, and even those requirements 

are inconsistent. Although both Virginia 

and Kentucky test miners for eleven 

drugs, only Kentucky tests for alcohol. 

The question could be posed as to why 

miners in Virginia should have to work 

in environments that could be less safe 

than those in Kentucky where more 

comprehensive testing programs are in 

place. Also, unregulated mines in states 

bordering those with laws could attract 

miners who want to avoid testing 

programs, thus increasing their chances 

of experiencing avoidable accidents and 

other safety hazards. Inconsistencies 

also exist within MSHA’s current 

standard prohibiting the use of 

intoxicating beverages and narcotics in 

or around mines. The current standard 

applies only to metal and nonmetal 

mines, but not to coal mines. This 

proposal would bring consistency for 

alcohol- and drug-testing and treatment 

referral and offer the same measure of 

safety for all miners in all states. 

The proposal is intended to prevent 

the safety risks that can result from the 

use of alcohol and drugs by those who 

work on mine property. Thus, under the 

proposed rule, possession of alcohol or 

drugs on mine property as well as any 

use of alcohol or drugs that might 

compromise safety while working in 

safety-sensitive job duties (i.e., activities 

where a lapse of critical concentration 

could result in an accident, serious 

injury, or death) is prohibited. 

Alcohol- and drug-testing is a 

common practice in many industries, 

and most private sector employers have 

a great deal of latitude about whether to 

drug test and how to do so. Several 

federal agencies (including the 

Departments of Defense and Energy, the 

Nuclear Regulatory Commission, and 

the National Aeronautics and Space 

Administration) have regulations that 

require contractors, grantees, and 

licensees to have fitness-for-duty 

requirements or drug-free workplace 

programs that include a variety of 

testing requirements, such as preemployment, random, post-accident, 

and reasonable suspicion testing. The 

U.S. Department of Transportation 

(DOT) requires alcohol- and drug-testing 

of over 12 million workers performing 

designated safety-sensitive job duties in 

the aviation, trucking, railroad, mass 

transit, and pipeline industries and has 

codified its testing program 

requirements at 49 CFR part 40 (‘‘part 

40’’). The Coast Guard, which began 

requiring alcohol- and drug-testing 

when it was an agency under DOT, has 

continued to require testing that follows 

DOT part 40 even though it is now 

under the Department of Homeland 

Security. 

Because of the Government’s interest 

in public safety, DOT developed and 

implemented alcohol- and drug-testing 

regulations covering the transportation 

industry in 1989 in the absence of 

specific authority to do so. 

Subsequently, Congress passed the 

Omnibus Transportation Employee 

Testing Act of 1991 that requires 

transportation industry employers who 

have covered employees (i.e., employees 

in safety-sensitive positions) to have 

drug-free workplace programs which 

include both alcohol- and drug-testing. 

Similarly, many of the jobs in mines are 

safety-sensitive in that a momentary 

lapse of attention at a critical moment 

could cause significant injury not only 

to the individual but to many others. 

Thus, it is reasonable to expect that 

MSHA would act to ensure that, while 

on the job, miners are protected from 

alcohol and drug misuse of their 

colleagues. Furthermore, making 

alcohol- and drug-testing a standard part 

of an accident investigation and 

reporting the results would go a long 

way toward providing better 

information about the extent to which 

alcohol and drug use contributes to 

accidents in the mining industry. 

The proposed rule would give needed 

guidelines, procedures, and training 

materials to mine operators who have 

not yet adopted or implemented a drugfree mine program. This proposal would 

incorporate the DOT part 40 testing 

procedures. While there are some 

variations based on identified needs 

within the mining industry, the 

proposed rule requires testing under the 

same circumstances as DOT (preemployment, random, post-accident, 

and reasonable suspicion). Similarly, 

the proposed rule requires removal from 

the performance of safety-sensitive job 

duties and follows the same process of 

referring miners who test positive to 

Substance Abuse Professionals (SAP) 

and requiring return-to-duty and followup testing in order to resume 

performance of safety-sensitive job 

duties. The proposed employee and 

supervisor training requirements are 

also similar in content to the DOT rule 

and are intended to help the mine 

operator, supervisors, and miners 

recognize and know how to handle the 

signs of alcohol and drug use in the 

mine so that workers who are 

intoxicated or under the influence can 

be removed from the job site and sent 

for testing when indicated. 

IV. Section-by-Section Discussion 

Summary of Rule: The proposed rule 

would be 30 CFR subchapter N 

(Uniform Mine Safety Regulations) part 

66 and would replace the existing metal 

and nonmetal standards at 30 CFR 

56.20001 and 57.20001. This subchapter 

establishes safety regulations that apply 

to all mines: Coal and metal/nonmetal; 

surface and underground. 

MSHA recognizes that the existing 

regulations found at 30 CFR 56.20001 

and 57.20001 have shortcomings in that 

the existing provisions do not specify 

what substances are prohibited or 

require employers to take action when 

miners violate the regulations. Nor do 

the regulations require mine operators 

to train miners about the dangers that 

alcohol and drug use can bring into the 

mining environment. This proposed 

rule seeks to address these shortcomings 

and provide clear and actionable 

guidance for mine operators. 

The proposed rule would prohibit 

possession of alcohol or drugs on mine 

property; prohibit the use of or 

impairment from alcohol and a specific 

array of drugs; require alcohol- and 

drug-testing of miners who perform 

safety-sensitive job duties and their 

supervisors; and require that mine 

operators implement alcohol- and drugfree mine programs that consist of a 

written policy, employee education, 

supervisory training, alcohol- and drugtesting for miners that perform safetysensitive job duties and their 

supervisors, and referrals to assistance 

for miners who violate the policy. 

The proposed rule defines safetysensitive job duties and specifies that 

those performing or supervising such 

duties would be subject to alcohol- and 

drug-testing under the following 

circumstances: Pre-Employment; 


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randomly at unannounced times; postaccident if the miner may have 

contributed to the accident; based on 

reasonable suspicion that a miner has 

used a prohibited substance; and as part 

of a return-to-duty process for miners 

who have violated the rule. At a 

minimum, testing would be performed 

for the following: Alcohol, 

amphetamines (including 

methamphetamines), barbiturates, 

benzodiazepines (e.g., Valium, Librium, 

Xanax), cannabinoids (THC/marijuana), 

cocaine, methadone, opiates (heroin, 

opium, codeine, morphine), 

phencyclidine (PCP), propoxyphene 

(e.g., Darvon), and synthetic and semisynthetic opioids (hydrocodone, 

hydromorphine, oxymorphone, and 

oxycodone). Testing would also be 

required for any additional drugs 

subsequently designated by the 

Secretary of Labor, and nothing in the 

rule restricts mine operators from 

testing for additional drugs beyond 

those for which the rule requires testing. 

The proposed rule would require 

mine operators, at a minimum, to 

remove those miners who violate the 

prohibitions from the performance of 

safety-sensitive job duties until the 

miner completes the recommended 

treatment and their alcohol- and drugfree status is confirmed by a return-toduty test. Although the proposed rule 

requires mine operators to provide one 

opportunity for those violating the rule 

to get help and retain their job, it leaves 

it to the mine operator to determine the 

disciplinary consequences for 

subsequent violations. The alcohol- and 

drug-testing and return-to-duty 

procedures are specified in the 

proposed rule. Alcohol- and drugtesting would need to be conducted 

consistently with procedures 

incorporated by reference from DOT 

part 40, except in those places where 

specifically modified by this rule. 

Effective Date and Implementing 

Language: The proposed rule would 

allow mine operators who do not have 

an existing alcohol- and drug-free mine 

program in place one year from its 

effective date to implement its 

requirements. In the event a mine 

operator already has an alcohol- and 

drug-free mine program in place that 

tests for at least the substances specified 

by the rule, the mine operator would be 

considered to be in compliance with the 

proposed rule provided the prohibitions 

and training requirements are consistent 

with those in the rule even if differing 

drug-testing technologies are being 

used. However, mine operators with 

pre-existing drug-free mine programs 

would need to come into compliance 

with all requirements of the rule, 

including drug-testing procedures and 

technologies, within two years of the 

rule’s effective date. The rule would not 

require mine operators to conduct preemployment testing of incumbent 

workers, except prior to moving a 

worker from a position that does not 

involve the performance of safetysensitive job duties to a position that 

does require the performance of such 

duties. The proposed rule would require 

its training requirements for supervisors 

and miners to be met within 30 days of 

implementation of the mine’s drug-free 

workplace program. 

The decision to allow a phase-in of 

the new requirements is based on 

MSHA’s desire to allow the mining 

industry adequate time to understand 

and implement the new regulatory 

provisions. MSHA considers one year to 

be an appropriate timeframe for the 

industry to reach compliance, given that 

many large mine operators already have 

drug-free mine and drug-testing 

programs in place, and that MSHA 

intends to provide significant 

compliance assistance tools, including 

policy templates and training materials, 

to the many small mine operators who 

do not already have such programs. The 

decision to consider existing programs 

as in compliance with the rule for a twoyear period is based on the desire to 

minimize the regulatory burden to mine 

operators that already have programs 

deemed effective and in keeping with 

the purpose of this proposed rule. 

MSHA invites comments about the 

proposed amount of time allowed for 

implementation. 

Subpart A—General 

Section 66.1 Purpose 

This rule is intended to protect 

mining’s most precious resource—the 

miner—by preventing accidents, 

injuries, and fatalities at the mine 

associated with the misuse of alcohol 

and drugs. The rule would require mine 

operators to establish programs 

designed to help prevent accidents, 

injuries, and fatalities that could result 

from miners being under the influence 

of alcohol and/or drugs while on the 

job. 

Section 66.2 Applicability 

The mine operator would be 

responsible for compliance with these 

alcohol and drug requirements which 

apply to all miners performing safetysensitive job duties and their 

supervisors. All coal and metal/ 

nonmetal, surface and underground 

mines would be covered by the 

proposed rule. If the misuse of alcohol/ 

drugs is seen as compromising safety in 

metal/nonmetal mines and therefore 

require regulation (Sections 56.20001 

and 57.20001), then alcohol and drugs 

should be similarly regarded as having 

the potential to compromise safety in 

coal mines. 

In response to the ANPRM’s request 

for opinions on whether or not to revise 

the existing metal and nonmetal 

standard, which states that intoxicating 

beverages and narcotics shall not be 

permitted or used in or around mines 

and persons under the influence of 

alcohol or narcotics shall not be 

permitted on the job, there was general 

agreement among commenters that any 

revision of this standard, or any new 

standard, should address both the coal 

and metal/nonmetal sectors. In addition, 

the rule would apply to all mine 

operators, regardless of size of 

workforce, as a way to ensure increased 

protection for all miners. Commenters to 

the ANPRM expressed a view that it 

would be unfair for the rule’s 

prohibitions to be applied selectively. 

MSHA recognizes that the overall 

responsibility for mine safety rests with 

mine operators. MSHA also understands 

that miners play a key role in achieving 

mine safety and health. Thus, the 

alcohol- and drug-testing and training 

provisions would have applicability to 

both mine operators and those miners 

who perform safety-sensitive job duties 

and their supervisors. 

Although the general prohibitions 

against using or possessing alcohol and/ 

or drugs while on mine property apply 

to everyone working at mines, the 

alcohol- and drug-testing and training 

provisions of the proposed rule would 

apply only to workers assigned to 

perform safety-sensitive job duties and 

their supervisors. This limitation of 

coverage is intended to strike a balance 

between MSHA’s statutory 

responsibility to protect the safety of 

miners and a desire not to propose 

blanket requirements applicable to 

miners who do not perform safetysensitive job duties. 

Another issue that MSHA considered 

in specifying the applicability of the 

rule is that of whether the rule and all 

of its requirements should apply to 

anyone performing safety-sensitive job 

duties, even if for a brief amount of 

time, or whether the rule should apply 

only to those who regularly or routinely 

perform safety-sensitive job duties. To 

be consistent with other safety 

requirements, MSHA proposes that the 

alcohol- and drug-testing and training 

requirements will apply to all those 

required to take comprehensive safety 

training under 30 CFR parts 46 and 48 

(‘‘part 46/48’’), since they already take 

into consideration the frequency and 


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regularity of exposure to safety hazards 

in the mines. MSHA seeks comments 

about the determination of who 

performs safety-sensitive job duties and 

is, therefore, required to be tested and 

trained. 

Section 66.3 Definitions 

Because this proposed rule uses a 

number of terms that have specific 

meanings in the context of the 

implementation of alcohol- and drugfree workplace programs, this section of 

the proposed rule defines and clarifies 

the key terms used in the Uniform Mine 

Regulations found at 30 CFR Subchapter 

N, part 66. 

Subpart B—Prohibitions 

Section 66.100 Prohibited Substances 

This section designates the substances 

that shall not be permitted in or around 

mine property and that cannot be used 

while performing safety-sensitive job 

duties, except, in the case of 

prescription medications, when they are 

used as authorized by a physician. 

Consistent with the DOT rule and 

with all other federal drug-free 

workplace requirements, MSHA’s 

proposed rule would prohibit the use, 

and require testing for, the following 

five controlled substances (commonly 

known as illicit drugs or the 

‘‘SAMHSA–5’’): 

• Amphetamines (including 

methamphetamines), 

• Cannibinoids (marijuana/THC), 

• Cocaine, 

• Opiates (e.g., heroin, opium, 

codeine, morphine), and 

• Phencyclidine (PCP). 

In addition, it is proposed that the 

unauthorized use of the following 

controlled substances also be 

prohibited: 

• Barbiturates, 

• Benzodiazepines (e.g., Valium, 

Librium, Xanax), 

• Methadone, 

• Propoxyphene (e.g., Darvon), and 

• Synthetic and semi-synthetic 

opioids (i.e., hydrocodone, 

hydromorphone, oxymorphone, 

oxycodone). 

Consistent with DOT safety 

regulations, MSHA also proposes 

prohibiting being under the influence 

of, using, or possessing alcohol on mine 

property. 

Because new drugs emerge that can be 

subject to abuse, and trends change as 

to what drugs are widely abused, the 

proposed rule includes an opportunity 

for additional substances to be added to 

the list of prohibited substances as 

designated by the Secretary. 

Under the Controlled Substances Act 

it is illegal for individuals to use any of 

the proposed controlled substances, 

except when used pursuant to a valid 

prescription, regardless of where a 

person is at the time of use. Thus, the 

proposed rule’s prohibition simply 

reflects existing federal law. 

It is widely recognized that using 

illicit drugs or misusing prescription 

drugs can alter a person’s ability to 

function, make decisions, and exercise 

the judgment necessary to ensure their 

safety and that of those around them 

when working in the mining 

environment. It is also widely 

recognized that alcohol, despite being 

legal, can impact a person’s ability to 

work safely in a high-hazard 

environment. 

The ANPRM asked for information, 

evidence-based or anecdotal, about 

which substances are used most 

prevalently by miners and create the 

most significant safety hazards at mines. 

A number of commenters, including 

mine operators and industry trade 

associations, specifically mentioned that 

the following drugs were prevalent and 

of concern: Alcohol, marijuana, cocaine, 

opiates, methamphetamines and 

prescription painkillers, notably 

methadone and oxycodone. 

Commenters’ concerns about 

prescription painkillers reflect recent 

data that indicate they are a growing 

problem. According to the 2006 

National Survey on Drug Use and 

Health (NSDUH), prescription drug 

misuse was the second-ranking drug 

threat in terms of prevalence, with 7.0 

million (2.8 percent) persons aged 12 or 

older using prescription-type 

psychotherapeutic drugs non-medically 

in the past month. Of these, 5.2 million 

used pain relievers, an increase from 4.7 

million in 2005. Furthermore, past 

month non-medical use of prescriptiontype drugs among young adults 

increased from 5.4 percent in 2002 to 

6.4 percent in 2006. This was primarily 

due to an increase in the rate of pain 

reliever use, which was 4.1 percent in 

2002 and 4.9 percent in 2006. However, 

non-medical use of tranquilizers also 

increased over the five-year period 

(from 1.6 to 2.0 percent). Furthermore, 

data from Quest Diagnostics’ Drug 

Testing Index indicate that positive 

workplace drug results for 

amphetamines—stimulants that can 

include prescription drugs or diet aids—

increased more than 7 percent from 

2006 to 2007. 

The Final Report of the Mine 

Substance Abuse Task Force, issued in 

December 2005, indicates that rates of 

prescription drug misuse in the 

Appalachian mining region may be 

higher than the national findings. The 

task force was charged with gathering 

and evaluating pertinent information on 

alcohol and drug abuse and its impact 

on the health and safety of miners in 

Virginia, West Virginia, and Kentucky 

and developing recommendations for 

state and federal agencies and the 

mining industry. During the group’s 

deliberations, testimony indicated drug 

dependency among miners can develop 

from the legitimate use of prescribed 

painkillers. This was further supported 

by a Virginia Department of Health 

report that identified the average drug 

abuser in southwest Virginia as a 37- 

year-old male with a history of drug 

abuse and treatment for pain or chronic 

illness, with nearly one-fourth of 

abusers working in construction or 

mining jobs. 

Based on its findings, the Mine 

Substance Abuse Task Force 

recommended in its Final Report a 

testing protocol that included illegal 

drugs, alcohol, and prescription drugs 

used illegally or in excess of therapeutic 

levels. Furthermore, when the 

International Brotherhood of 

Boilermakers, a union representing 

65,000 workers in a variety of trades, 

including mining, implemented a drugtesting program for its members in 1995, 

it chose to test for presence of illegal 

drugs as well as misuse of prescription 

drugs. Since that time, the union reports 

decreased worksite accidents involving 

its members. A similar program 

operated by the International 

Association of Bridge, Structural, 

Ornamental and Reinforcing Iron 

Workers also tests members for 

prescription drug misuse. 

Furthermore, the U.S. Drug 

Enforcement Administration (DEA) has 

reported that counties in eastern 

Kentucky lead the nation in terms of 

grams of narcotic pain medications 

distributed on a per capita basis, and 

that aside from marijuana cultivation 

and trafficking, the trafficking and 

misuse of prescription drugs may be the 

most significant current drug threat 

within the Appalachia High Intensity 

Drug Trafficking Area (HIDTA), which 

encompasses counties in Kentucky and 

West Virginia. 

Commenters to the ANPRM expressed 

concern not only about the non-medical 

use of prescription painkillers, but also 

about the impact that even legally used 

prescription medications could have on 

functioning and whether individuals on 

such painkillers can safely operate 

mining equipment. Also, most 

commenters, including those 

representing trade associations, mine 

operators, and miners, specifically 

referenced alcohol. Although the 

proposed rule does not prohibit the use 

of prescription drugs that may have 


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impairing side effects, as long as they 

are being prescribed by a physician, 

MSHA is interested in further comments 

about experiences and concerns about 

the use of such substances in mining. 

According to the ‘‘Worker Substance 

Use and Workplace Policies and 

Programs’’ report prepared by 

SAMHSA, alcohol problems are 50 

percent more prevalent in the mining 

industry than in other industries. 

The intent of the proposed rule is to 

improve safety in the nation’s mines. 

MSHA proposes to prohibit misuse of 

alcohol and prescription drugs and use 

of drugs on mine property based on 

their known incompatibility with safe 

working conditions as well as 

observations from the industry and data 

indicating a high prevalence of such 

behavior in mining regions. At the same 

time, MSHA recognizes that drugs of 

concern may vary from location to 

location and change over time. It is 

MSHA’s desire to establish a standard 

addressing specific drugs, but the 

agency also wishes to allow for 

flexibility should other drugs not 

specified in this rule threaten worker 

safety. MSHA seeks comments on the 

list of drugs that are specifically 

identified as prohibited substances and 

the means for maintaining flexibility to 

include additional drugs as the need 

arises. Public comment also is sought 

from individuals and entities that have 

experience and data regarding the 

specific drug compounds to be tested for 

within these drug groups and classes; 

the target parent drug and/or 

metabolite(s) to be tested for; the 

quantitated concentrations of these 

drugs and/or metabolites to determine 

an initial test presumptive positive 

result and a separate confirmed test 

result; along with the best practices and 

recommendations for training and 

certification of Medical Review Officers 

(MRO) in reviewing the laboratory test 

results for miners and differentiating 

use in accordance with a valid medical 

prescription versus illicit use. 

Section 66.101 Prohibited Behaviors 

This section would specify the 

prohibited behaviors and what is 

considered evidence of those behaviors, 

and thus a violation of the rule. Under 

the proposed rule the possession and 

use of prohibited substances on or 

around mine property is not permitted, 

unless the miner possesses a valid 

prescription that requires use while on 

mine property. In addition, reporting for 

or remaining on duty under the 

influence of or impaired by these 

substances would be prohibited under 

the proposed rule. A Blood Alcohol 

Concentration (BAC) level of 0.04 

percent or greater would be considered 

verification of being under the influence 

of or impaired by alcohol, and a positive 

drug test above the cut-off levels, 

without a legitimate medical 

explanation, would constitute 

verification of use of a prohibited 

substance. MSHA proposes using the 

same BAC level for alcohol and cut-off 

levels for other substances as are used 

by DOT to indicate the levels at which 

a violation of the rule is considered to 

occur. However, in order to simplify the 

procedures and minimize confusion, 

MSHA has chosen not to adopt the 

bifurcated system used by DOT which 

requires temporary removal from 

performing safety-sensitive job duties if 

the BAC level on an alcohol test is 

between .02 and .039. MSHA believes 

that enforcing the 0.04 percent BAC 

level, which is well below what is 

considered under the influence by state 

laws governing driving under the 

influence, is sufficiently protective. 

As MSHA’s regulatory authority 

relates to safety, the proposed rule is 

intended to prevent possession and 

misuse of alcohol or drugs that 

negatively impact mine safety. It is 

important to note that this qualification 

may also relate to the use of these 

substances off of mine property, for 

example, prior to starting a work shift, 

since the use of prohibited substances 

could have extended effects that persist 

on the job, and therefore compromise 

safety. Thus, any misuse of prohibited 

substances that would result in effects 

that can compromise safety while 

working would constitute a violation of 

the rule. 

The proposed rule would also 

prohibit miners from refusing to submit 

to an alcohol or drug test or attempting 

to alter the results of such a test. The 

inclusion of this provision follows the 

DOT model and is necessary in order to 

maintain the integrity of the rule’s 

intent and its effectiveness. 

Subpart C—Drug-Free Mine Program 

Requirement 

Section 66.200 Purpose and Scope 

The proposed rule would require each 

mine operator to implement the 

following five elements of an alcoholand drug-free program: A written policy, 

employee education, supervisory 

training, alcohol- and drug-testing for 

miners that perform safety-sensitive job 

duties and their supervisors, and 

referrals to assistance for miners who 

violate the policy. A sample model 

alcohol- and drug-free mine policy 

statement and samples of training 

materials are available from MSHA or 

the Web site at http://www.msha.gov. 

Even absent a regulation requiring 

such a program, commonly called a 

drug-free workplace program, many 

mine operators have voluntarily 

implemented them. In fact, many, 

including several that responded to the 

ANPRM, report that these programs 

have improved workplace safety and 

reduced workers’ compensation costs 

and non-fatal days lost. Some 

commenters to the ANPRM also said a 

perception exists among miners with 

alcohol and/or drug problems that 

absent such a program there are no real 

consequences of their behavior and 

therefore, the scope of the problem is 

larger at mines without programs in 

place. While some miners will not be 

dissuaded from using prohibited 

substances by any efforts, some 

commenters felt that adoption of drugfree mine programs explains why fewer 

positive tests are seen in their 

operations and why miners who have 

tested positive in the past choose to 

remain clean. Thus, MSHA believes that 

having programs in place at all mines 

would be in the best interest of all 

miners in order to improve safety. 

The elements of a drug-free mine 

program that would be required by the 

proposed rule reflect the wellestablished ‘‘five-step’’ model the 

federal government has used for its own 

drug-free workplace program since the 

1980s and encourages private sector 

organizations to adopt through advisory 

programs run by both the U.S. 

Department of Labor and the U.S. 

Department of Health and Human 

Services/Substance Abuse and Mental 

Health Services Administration. Many 

of the mine operators responding to the 

ANPRM described the adoption of these 

elements. 

Section 66.201 Written Policy 

A written policy forms the foundation 

for a drug-free mine program. The 

proposed rule would require each mine 

operator to develop a written policy and 

provide it to all miners covered by the 

rule. Each mine’s policy could be 

tailored; however, each one would, at a 

minimum, address the purpose of the 

rule and policy; contain a clear 

description of the prohibited behaviors 

under the rule; outline the means, 

including testing, for determining if the 

policy has been violated; include an 

explanation of the consequences for 

violating the policy; and requirements 

for training. It was generally agreed 

upon by ANPRM commenters that a 

policy is the most logical vehicle for 

clearly communicating to miners what 

is expected of them. Written policies are 

standard practice for safety policies in 

mining as well as other industries. 


jlentini on PROD1PC65 with PROPOSALS5
Federal Register / Vol. 73, No. 174 / Monday, September 8, 2008 / Proposed Rules 52145 

Furthermore, MSHA intends to assist 

mine operators in developing their 

policy by providing a sample template 

that can be used to address all required 

elements that can be tailored to include 

optional elements at the mine operator’s 

discretion. A mine operator must ensure 

that every miner has been informed of 

the policy. The proposed rule requires 

that a mine operator must provide a 

copy of the written policy to the miners’

representative or post the policy on a 

bulletin board in a common area in the 

event that the miners’ do not have a 

representative. Mine operators may also 

choose to distribute the policy during 

the alcohol and drug-free awareness 

training sessions or distribute the policy 

in an electronic format; however, these 

additional means of distribution are not 

required. The rule would require that 

the policy be reviewed during training 

sessions and made available upon 

request. MSHA invites comments on 

how the policy should be provided to 

miners. 

Section 66.202 Education and 

Awareness Program for Nonsupervisory 

Miners 

Under this section of the proposed 

rule each mine operator would be 

required to implement an education and 

awareness program for nonsupervisory 

miners to provide them with the 

information they need to fully 

understand and comply with the rule. 

Those miners currently required to take 

comprehensive safety training under 

parts 46 and 48 would be required to 

take the training required by the 

proposed rule. The proposed required 

amount of time for this training would 

be 60 minutes for new hires and 30 

minutes annually for all nonsupervisory 

miners. Topics addressed would 

include a review of the policy 

requirements; generalized information 

about the nature of alcoholism and drug 

addiction; its impact on work 

performance, health, and personal life; 

and types of help available for 

individuals with alcohol and/or drug 

problems. 

Many commenters to the ANPRM 

support this type of training for miners. 

One commenter from the workplace 

drug prevention field stressed the 

importance of educating miners so that 

they fully understand the safety issues 

regarding alcohol and drug abuse rather 

than simply preaching about how bad 

alcohol and drugs can be. Another 

commenter, a safety director for a coal 

company, felt that education was 

important to encourage those with 

alcohol or drug problems to seek help, 

but cautioned against modifying 

MSHA’s existing training requirements. 

By contrast, a number of other 

commenters from within the mining 

industry specifically suggested such 

training should be incorporated into 

MSHA’s existing training. 

Although concerned about the 

number of required topics that already 

must be covered under parts 46 and 48, 

MSHA believes that it is appropriate to 

include education on alcohol and drug 

awareness in the required safety training 

both for new miners and as part of the 

annual refresher training. However, the 

proposed rule would require that the 

time allotted to this training be added to 

the total number of hours required 

under parts 46 and 48 so that there is 

sufficient time to cover all necessary 

training topics. The ANPRM did not 

specifically ask the public to comment 

on how much time should be dedicated 

to new miner and annual refresher 

training on alcohol and drugs, or the 

specific training media or methods that 

would be most suitable, and few 

commenters volunteered such 

information in their comments. MSHA 

is proposing to follow the standard 

established by the state of Kentucky, 

which requires 60 minutes of initial 

substance abuse training for new 

miners. This is also consistent with the 

Federal Transit Administration (FTA) 

requirement of 60 minutes of initial 

training on the alcohol- and drug-testing 

rule. In addition, MSHA is proposing 30 

minutes annually thereafter for 

nonsupervisory miners to review the 

requirements and to remind miners of 

help that is available. MSHA believes 

this is appropriate given the need to 

regularly remind miners of the necessity 

of following any other safety practice. 

Furthermore, it is believed that doing so 

annually may encourage those with 

problems to seek help before they 

violate policy or create safety hazards. 

MSHA invites comments about the 

amount of employee education that is 

needed. 

The proposal would require that the 

training be delivered by a competent 

person knowledgeable about workplace 

substance abuse, this rule’s 

requirements, and the mine operator’s 

policy. MSHA has already developed a 

number of materials that can be used to 

fulfill this employee education 

requirement. However, the training may 

be delivered using various technology or 

methods. Videos or other audio-visual 

materials may be used to supplement 

interactive training but cannot be used 

as a sole means of training. 

MSHA invites comments about the 

amount and type of training for 

nonsupervisory miners and about the 

methods appropriate for delivering this 

training and also about the best means 

for assuring that training is delivered by 

qualified personnel. 

Section 66.203 Training Program for 

Supervisors 

Under this section of the proposed 

rule each operator would be required to 

implement a training program for 

supervisors to make them aware of their 

responsibilities in ensuring compliance 

with the rule; recognize and deal with 

miners who have performance problems 

that may be related to alcohol and/or 

drugs; understand how to refer miners 

to available assistance; and know how 

to make determinations for requiring a 

reasonable suspicion or post-accident 

test. 

The majority of commenters to the 

ANPRM support this type of training. Of 

particular note was concern that if 

supervisors are responsible for making 

referrals for alcohol- and/or drug-testing 

based on reasonable suspicion, they 

must be adequately trained on how to 

make that determination. Several mine 

operators who commented said they 

already have a training program for 

supervisors and provided information 

about their programs. 

MSHA is proposing that a minimum 

of two hours of initial training be 

provided to each supervisor with an 

additional one hour of training annually 

thereafter. The proposal would require 

that the training be delivered by a 

competent person knowledgeable about 

workplace substance abuse, this rule’s 

requirements, and the mine operator’s 

policy. MSHA has already developed a 

number of materials that can be used to 

fulfill this employee education 

requirement. However, the training may 

be delivered using various technology or 

methods. Videos or other audio-visual 

materials may be used to supplement 

interactive training but cannot be used 

as a sole means of training. 

MSHA invites comments about the 

amount and type of training for 

supervisors and about the methods 

appropriate for delivering this training 

and also about the best means for 

assuring that training is delivered by 

qualified personnel. 

Although all those who are in a 

position to observe and direct the work 

activities of others may have 

opportunities to discover reasons to 

suspect a miner is misusing substances, 

and hence benefit from reasonable 

suspicion training, it may not be wise to 

spread the authority to initiate such 

tests too broadly. MSHA proposes to 

leave it to the mine operators to 

determine who must receive this 

training. MSHA seeks comments on this 

proposal. 


jlentini on PROD1PC65 with PROPOSALS5
52146 Federal Register / Vol. 73, No. 174 / Monday, September 8, 2008 / Proposed Rules 

23Minchin, Jr., R.E., Glagola, C.R., Guo, K. and 

Languell, J.L. ‘‘Case for Drug Testing of 

Construction Workers,’’ Journal of Management in 

Engineering 22.1 (January 2006): 43–50. 

Section 66.204 Miner Assistance 

Following Admission of Use of 

Prohibited Substances 

This section of the rule discusses 

actions that must be taken by mine 

operators following the admission of use 

of prohibited substances by miners. 

Mine operators are required to make 

such miners aware of available 

assistance through an employee or 

miner assistance program, a Substance 

Abuse Professional (SAP), and/or other 

qualified community-based resources. 

MSHA recognizes the desire of mine 

operators to retain skilled miners who 

address and subsequently recover from 

their alcohol and/or drug problems. 

Information received in response to the 

ANPRM and anecdotally from the 2004 

Summit and other sources suggests that 

mine operators may be able to return 

certain miners to work without 

compromising safety if they have taken 

advantage of access to appropriate 

treatment, continuing care, and 

supportive services. Several mine 

operators with existing Employee 

Assistance Programs (EAP) reported an 

approximately 50 percent success rate. 

It is MSHA’s intention to encourage 

miners to voluntarily seek assistance, 

but not to allow them to do so to avoid 

testing or other requirements under the 

proposed rule. MSHA invites comments 

on this provision. Because MSHA 

believes that alcohol and drug use is a 

serious safety problem and that 

addiction is a treatable disease, 

recognizes that mine operators need to 

retain experienced miners, and 

understands the critical roles mines 

play in the vitality of their local 

economies, MSHA seeks comments 

about the extent to which third party 

health benefits are available to cover the 

cost of SAP and treatment services for 

miners covered by the rule. MSHA also 

seeks comments on all aspects of the 

miner assistance provisions required by 

this rule. 

Subpart D—Alcohol- and Drug-Testing 

Requirements 

Section 66.300 Purpose and Scope 

Although the ANPRM did not 

specifically ask for comments about the 

advisability of alcohol- and drug-testing, 

it did ask for comments about how 

impairment from prohibited substances 

should be determined. Drug-testing was 

the majority response, although some 

commenters noted that drug-testing in 

and of itself does not determine 

impairment, most commenters agreed 

that testing can be an effective deterrent 

to being impaired on the job, which 

ultimately is the positive effect desired. 

Based on ANPRM comments received, 

as well as anecdotal information from 

the 2004 Summit, MSHA believes that 

alcohol- and drug-testing is an effective 

deterrent to impairment on the job, and 

therefore section 66.303 of the proposed 

rule would require mine operators to 

conduct alcohol- and drug-testing in 

certain specified circumstances. Similar 

drug-testing rules for miners were 

recently adopted by the states of 

Virginia and Kentucky. Furthermore, 

drug-testing is a safety practice widely 

used by many private-sector operators, 

particularly those in industries 

considered high hazard, and data 

indicate its positive effects. Notably, a 

study of the construction industry 

workplaces that conduct drug-testing 

revealed that they experienced a 51 

percent reduction in injury rates (from 

8.92 incidents per 200,000 down to 4.36 

incidents per 200,000) within two years 

of implementation, compared with a 14 

percent average decline in injury rates 

among construction companies in 

general.23

Although there is widespread 

recognition among commenters about 

the merits of alcohol- and drug-testing, 

there were many concerns expressed 

about the various types of alcohol- and 

drug-testing and the exact procedures to 

be used. These specific concerns are 

discussed in the preamble relative to 

each type of testing that MSHA is 

proposing. Some ANPRM comments, 

including those from union 

representatives and trade associations, 

opposed any regulatory requirement for 

mine operators to conduct alcohol- and 

drug-testing. For example, a 

representative from the UMWA 

expressed skepticism that an alcoholand drug-testing rule was necessary, 

citing the lack of data showing that 

alcohol or drugs significantly contribute 

to mining accidents and opines that 

such a rule would be unenforceable. 

Although he did not expressly state an 

opposition to alcohol- and drug-testing, 

he did suggest that to be effective, 

MSHA should do the testing itself rather 

than relying on the mine operators to do 

so. Many commenters representing mine 

operators expressed confidence in 

existing company alcohol- and drugtesting programs and felt there was no 

need for MSHA to impose a burdensome 

requirement in this area. 

MSHA proposes to incorporate the 

DOT part 40 alcohol- and drug-testing 

procedures. Mine operators should read 

‘‘MSHA’’ where these procedures refer 

to ‘‘DOT.’’ Consistent with DOT part 40, 

MSHA is offering mine operators the 

option to use service agents to perform 

the functions required by this subpart 

including services for collection of urine 

specimens, a certified Breath Alcohol 

Technician (BAT), a laboratory, Medical 

Review Officer (MRO), and a Substance 

Abuse Professional (SAP). The proposed 

rule includes definitions for the various 

types of service agents. However, 

MSHA, unlike DOT part 40, proposes 

testing for ten substances rather than 

five. 

The proposed rule’s requirements 

prescribe breath testing for alcohol and 

urine collection procedures for drugtesting; however, it is MSHA’s intent to 

follow the U.S. Department of Health 

and Human Services’ (HHS) lead should 

alternative testing procedures be 

approved for federal programs. MSHA is 

aware that some mine operators are 

already testing using alternative 

methods such as point of collection 

devices and alternative specimens and 

seeks comments and information on 

what their experience has been. This 

information will help MSHA determine 

whether existing mine operator 

programs differ significantly from 

proposed requirements. 

The proposed rule contains a 

requirement that mine operators use 

only HHS-certified laboratories to test 

collected samples. HHS-certified 

laboratories must comply with the 

applicable provisions of HHS’

Mandatory Guidelines for Federal 

Workplace Drug Testing Programs 

concerning accessioning and processing 

urine specimens. These provisions 

require laboratories to conduct validity 

testing to determine whether certain 

adulterants or foreign substances have 

been added to the specimen to mask or 

destroy the drug or drug metabolite that 

the specimen may contain as well as 

determine if the specimen was diluted. 

However, since HHS currently only 

certifies laboratories to test for the five 

illicit drugs for which federal agencies 

test, MSHA also proposes to require that 

laboratories that conduct testing under 

this rule be certified by the College of 

American Pathology (CAP) to perform 

Forensic Urine Drug Testing for the 

additional substances specified by this 

rule. 

Although MSHA proposes to adopt 

DOT part 40 requirements, it does not 

propose to monitor or review the 

performance of service agents, including 

laboratories, used by mine operators to 

comply with the rule’s requirements. 

Rather, MSHA intends for mine 

operators to contract with service agents 

who deliver quality services, possess 

appropriate certifications, and follow 


jlentini on PROD1PC65 with PROPOSALS5
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24This is the period of time required for the 

concentration or amount of drug in the body to be 

reduced by one-half. 

25Caplan, Y.H. & Huestis, M.A. (Eds.) (2007). 

Workplace Testing. In S. Karch (Ed.) Drug Abuse 

Handbook, 2nd Edition. Boca Raton: Taylor & 

Francis Group, LLC. 

part 40 requirements for the collection, 

processing, and analysis of specimens 

and the reporting of results. By relying 

on experienced and qualified service 

agents who adhere to and are being 

monitored by existing HHS and DOT 

standards, MSHA believes that the 

accuracy, validity, reliability, and 

integrity of the testing process will be 

maintained. 

Section 66.301 Substances Subject to 

Mandatory Testing, and Section 66.302 

Additional Testing 

These sections identify the substances 

for which testing would be required. 

They are alcohol and ten drugs: 

amphetamines (including 

methamphetamines), barbiturates, 

benzodiazepines (e.g., Valium, Librium, 

Xanax), cannabinoids (marijuana/THC), 

cocaine, methadone, opiates (e.g., 

heroin, opium, codeine, morphine), 

phencyclidine (PCP), propoxyphene 

(e.g., Darvon), and synthetic and semisynthetic opioids (hydrocodone, 

hydromorphone, oxymorphone, and 

oxycodone). This ‘‘ten-panel’’ drug test 

is commonly used and both Virginia 

and Kentucky state laws already require 

testing of miners for these drugs. The 

decision to include these drugs is based 

in part on indications from commenters 

to the ANPRM who have extensive 

experience in the alcohol- and drugtesting field. Commenters in the mine 

industry also highlighted the need to 

address alcohol and prescription drug 

abuse. Findings from federal drug-use 

surveys and 2008 data from the Quest 

Drug Testing Index show that 

prescription drug-abuse is rising in the 

workforce, substantiating other ANPRM 

comments. It is worth noting that many 

private industry employers, including 

numerous mine operators, already test 

for these drugs. As previously indicated, 

HHS/SAMHSA has already established 

workplace drug-testing cut-off values for 

amphetamines, cannabinoids, cocaine, 

opiates, and phencyclidine, which are 

commonly referred to as the 

‘‘SAMHSA–5.’’ At present, there are no 

federal workplace drug-testing 

standards for barbiturates, 

benzodiazepines, propoxyphene, 

methadone, or synthetic/semi-synthetic 

opioids, all of which can be legally 

prescribed. 

Testing for abuse of prescription 

drugs is complicated, in that 

determinations of abuse can only be 

made after ascertaining: (1) Whether the 

individual being tested has a legitimate 

prescription; and (2) if a legitimate 

prescription exists, whether the 

individual is using the medication in 

accordance with the prescriber’s 

instructions. In many instances, this is 

a case-by-case determination that can 

only be made by examining the halflife 24 of the medication; the prescribed 

dosage; and the individual’s metabolic 

rate, and comparing this information to 

the amount of medication in an 

individual’s system at the time of 

testing. Any deviations from the 

expected levels may indicate possible 

abuse. Various laboratories and 

industries have developed testing cutoff levels based on the concentration 

levels at which these substances can be 

detected via urine testing. Although 

each case will require individual 

analysis, MSHA has proposed cut-off 

levels based on the range of levels being 

used by major laboratories and 

industries currently testing for these 

substances. The tables below show 

commonly used cut-off levels for these 

substances. 

Screening 

DOL 

(proposed) 

(ng/ml) 

Quest 

Diagnostics 

(ng/ml) 

European 

workplace 

standards 

(ng/ml) 25

Screening 

Barbiturates .......................................................................................................................... 300 300 200 

Benzodiazepines .................................................................................................................. 300 300 200 

Propoxyphene ....................................................................................................................... 300 300 300 

Methadone ............................................................................................................................ 300 300 300 

Synthetic and Semi-synthetic Opioids .................................................................................. 300 (*) n/a 

Confirmation 

Barbiturates .......................................................................................................................... 200 200 150 

Benzodiazepines .................................................................................................................. 200 200 100 

Propoxyphene ....................................................................................................................... 200 200 300 

Methadone ............................................................................................................................ 200 200 300 

Synthetic and Semi-synthetic Opioids .................................................................................. 300 (*) n/a 

* Varies. 

Data on cut-off levels for other 

synthetic and semi-synthetic opioids 

were less readily available. Six 

laboratories offering urine testing for 

oxycodone can detect levels of 100 ng/ 

ml of this substance in subjects’ urine. 

This list of prohibited substances 

could be revised in the future at the 

Secretary’s discretion and as changes in 

drug-abuse trends occur. Nothing in the 

rule prohibits mine operators from 

testing for additional drugs under their 

own authority. Though it is advisable 

that any additional drugs be referenced 

in the mine operators’ drug-free 

workplace policy statements and that 

testing be conducted consistent with 

established professional standards, the 

rule does not speak to such matters. It 

is allowable for mine operators who 

choose to test for additional drugs to use 

the same sample to do so. However, 

though the mine operator may choose to 

treat positive tests for the additional 

drugs the same way as for those tested 

under this rule, it is not required. In 

other words, it is not considered a 

violation of this part for a miner to use 

drugs not specified in the rule though it 

may violate other laws. Comments 

received during the ANPRM process 

noted that there may be times when 

drugs abused by miners may not be 

among those specified in a rule. By not 

restricting mine operators from testing 

for the use of additional drugs, the rule 

would enable mine operators to tailor 

their drug-testing policy and program as 

appropriate for their communities and 

to adapt it as needed based on changing 

trends in drug use. It also reflects 

standard latitude given to most private 


jlentini on PROD1PC65 with PROPOSALS5
52148 Federal Register / Vol. 73, No. 174 / Monday, September 8, 2008 / Proposed Rules 

sector companies. MSHA invites 

comments about the required panel of 

drugs subject to mandatory testing. 

Section 66.303 Circumstances Under 

Which Testing Will Be Required 

The proposed rule would follow the 

DOT part 40 testing guidelines and 

require testing in the following 

circumstances: Pre-employment testing, 

random testing, post-accident testing, 

reasonable suspicion testing, and as part 

of a return-to-duty and follow-up 

process for miners found to be in 

violation of the alcohol and drug 

prohibitions. 

MSHA invites comments about the 

circumstances under which testing is 

warranted, and should therefore, be 

required. 

Section 66.304 Pre-employment 

Testing 

The proposed rule would require 

mine operators to ensure that each 

miner take a pre-employment alcoholand drug-test and produce a negative 

result before performing safety-sensitive 

job duties. Pre-employment testing 

includes testing new applicants for 

safety-sensitive positions as well as 

incumbent miners if they are switching 

from positions that do not involve 

safety-sensitive job duties to positions 

that involve safety-sensitive job duties. 

The purpose of pre-employment testing 

is to prevent hiring those who are 

unable to abstain long enough to be able 

to pass such a test, and to discourage 

those who actively use drugs from 

applying. Because pre-employment 

testing for alcohol cannot be conducted 

pursuant to the Americans with 

Disabilities Act (ADA) until after a 

conditional offer of employment has 

been made, the proposed rule would 

require that mine operators conduct 

alcohol tests only after such an offer has 

been made, but before a miner performs 

safety-sensitive job duties. Since the 

ADA does not impose similar 

restrictions on drug-testing, mine 

operators can conduct those tests at any 

time in the application and hiring 

process and do not need to wait until a 

conditional offer of employment has 

been made. 

Pre-employment testing is widely 

used in the private sector and several 

mine operators responding to the 

ANPRM reported that they already 

conduct such testing. Although some 

commenters expressed concerns that 

pre-employment alcohol- and drugtesting would make it difficult for them 

to hire experienced miners due to labor 

shortages in some areas, others 

remarked that pre-employment testing 

alone is not sufficient to keep drug users 

out of the mine since even habitual drug 

users can usually abstain long enough to 

produce the required negative result. 

Most agreed, however, that preemployment testing is a necessary 

element of an effective alcohol- and 

drug-free mine program. MSHA agrees 

that pre-employment alcohol- and drugtesting sends a clear message that 

misuse of alcohol and drugs will not be 

tolerated and discourages many with 

alcohol and/or drug problems from 

applying, and therefore proposes to 

require such testing as part of the 

proposed rule. Under the proposal, an 

applicant could not be hired if their 

alcohol test result is a BAC of 0.04 

percent or above. 

Although mine operators may choose 

to require that all miners who will be 

performing safety-sensitive job duties 

and their supervisors submit to alcoholand drug-tests when the program is 

initiated, the rule will not require that 

incumbent workers take preemployment tests to continue 

performing their safety-sensitive job 

duties. MSHA invites comments about 

the proposed pre-employment alcoholand drug-testing provisions. 

Section 66.305 Random Testing 

For the purposes of this rule, random 

testing is unannounced testing 

performed on miners who perform 

safety-sensitive job duties and their 

supervisors, whose unique identifying 

information (e.g., an employee number) 

has been placed in a testing pool from 

which a scientifically arbitrary selection 

is made. The purpose of random testing 

is to deter current miners from using 

drugs illegally or coming to work 

impaired by alcohol or drugs. Many 

commenters expressed support for 

adopting random testing because of its 

strong deterrent effect and also shared 

that many of their existing programs 

require random testing at various annual 

rates. Although some commenters 

expressed skepticism about whether 

random testing is always truly random, 

and expressed fear that it can be used 

to target specific individuals, most 

confirmed that when done according to 

correct procedures, it can be an effective 

way to deter use provided that everyone 

is equally subject to such testing. Some 

expressed belief that it is, in fact, a more 

objective method of determining who 

gets tested than relying on supervisors 

to recommend drug tests based on 

reasonable suspicion, which, even with 

adequate training, is a subjective 

judgment. 

In order to get an indication of 

random alcohol- and drug-testing rates 

used by mining industry operators, we 

reviewed the policies shared during the 

2004 Summit, comments made during 

the 2005 ANPRM public meetings, and 

written submissions received in 

response to the ANPRM. Thirteen 

stakeholders were identified with 

random alcohol- and/or drug-testing 

programs, and 11 of these volunteered 

the percentages used. There was a wide 

variation in rates used, ranging from 1 

percent to 100 percent. Most companies 

who shared this information were 

testing in the range of 10 percent to 30 

percent annually. 

After considering the broad spectrum 

of experiences with random testing, 

including those of DOT and the federal 

agency programs, MSHA is proposing to 

include it as a required element of the 

alcohol- and drug-testing rule and 

proposes to require that a minimum of 

10 percent of miners that perform 

safety-sensitive job duties and their 

supervisors be randomly tested each 

year. The rule proposes to allow mine 

operators discretion to test at higher 

rates, and MSHA proposes to leave to 

the mine operator’s discretion the 

frequency at which random testing is 

done so long as the floor of 10 percent 

is reached each calendar year. The rule 

would require that random testing be 

done on an unannounced, unpredictable 

schedule. Miners who are on leave or 

otherwise absent from the workplace 

would be tested at the next available 

opportunity (e.g., immediately upon 

their return to work). 

MSHA recognizes that small mine 

operators may not have a pool of miners 

large enough to set up a meaningful 

random selection pool and so we would 

allow mine operators to fulfill the 

random testing requirement by forming 

or joining consortia for that purpose. 

MSHA invites comments about the 

floor rate at which testing would be 

conducted and what options, including 

joining consortia, are viable for small 

mine operators to fulfill the random 

testing requirement of the proposal. 

Section 66.306 Post-accident Testing 

The proposed rule would require that 

post-accident tests be conducted by 

mine operators whenever an accident or 

occupational injury must be reported to 

MSHA. MSHA proposes that for 

fatalities and non-fatalities all surviving 

miners involved in any work activity 

that could have contributed to the 

accident or occupational injury be 

tested for alcohol and drug use as soon 

as practical, but no later than eight 

hours after the incident for alcohol and 

32 hours for drugs. The differing testing 

windows are proposed because alcohol 

clears the system much more quickly 

than drugs. An alcohol-test result 

obtained beyond the eight-hour window 


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would not tell an investigator anything 

about whether the miner was under the 

influence at the time of the incident. 

The proposed rule leaves the decision 

about who must be tested to the mine 

operators, but proposes a broad reach 

such that anyone who could possibly 

have contributed to the accident could 

be tested. It is the intent of the proposal 

that mine operators make the decision 

to test as quickly and objectively as 

possible, because delay in conducting 

tests makes the results irrelevant to the 

accident investigation. Because it would 

be useful to collect information about 

whether the victim in a fatality had used 

alcohol or drugs in order to determine 

the cause and to prevent future 

accidents, MSHA is proposing to require 

post-mortem toxicology testing of the 

deceased. Although some states require 

approval of the next of kin in order to 

conduct and release autopsy results, a 

toxicology test is not nearly as invasive 

as an autopsy. Therefore, MSHA 

believes its authority to investigate 

following fatalities extends to requiring 

the performance of toxicology tests, for 

at least the same substances for which 

others are tested following an accident. 

Although the proposed rule requires 

mine operators to make the decisions 

about when and whom to test following 

a reportable accident, MSHA proposes 

to give its investigators authority to 

require such tests if they arrive within 

the testing window (eight hours for 

alcohol and 32 hours for drugs) and 

determine that additional miners not 

already tested by the operator may have 

contributed to the accident. All postaccident tests would be performed at the 

mine operator’s expense. The proposed 

rule also would require that postaccident tests would not be allowed to 

delay the delivery of necessary medical 

attention to injured miners. MSHA 

invites comments on the proposed postaccident testing provisions. 

Testing following an accident can 

help determine whether alcohol and/or 

drugs were a factor in the accident. It is 

important to note that although the 

result of post-accident testing may 

determine recent drug or alcohol use, it 

cannot in and of itself prove that 

impairment from those substances 

caused the accident. The ANPRM 

specifically asked for comments about 

whether alcohol and drug inquiries 

should be added to post-accident 

investigations and, if so, what types of 

inquiries should be made. Several 

commenters supported post-accident 

alcohol- and drug-testing as part of these 

investigations. MSHA has not proposed 

specific changes to the accident 

investigation process (see 30 CFR 

50.11), but welcomes comments on how 

the alcohol- and drug-testing results 

should be documented in accident 

reports as well as how they should be 

evaluated during an accident 

investigation to help determine the 

cause of the accident. MSHA also 

welcomes comments from those that 

already perform post-accident tests 

regarding the number of cases where 

alcohol or drugs were determined to be 

a contributing or root cause of the 

accident, and the frequency of all 

accidents/injuries where tests reveal 

some alcohol or drug involvement. 

Section 66.307 Reasonable Suspicion 

Testing 

Reasonable suspicion testing is 

conducted when a supervisor 

documents observable signs and 

symptoms that lead him or her to 

suspect alcohol or drug use. Such 

testing is a tool that supervisors can use 

to confirm or rule out alcohol or drugs 

as the cause of performance problems 

and behaviors that in and of themselves 

could create hazards. Under the 

proposed rule, if a test is positive the 

miner can, at least upon the first such 

violation, be referred to evaluation and 

treatment in order to get the help 

needed to be able to return to safe and 

productive work. 

A number of those speaking at 

ANPRM public meetings discussed the 

pros and cons of reasonable suspicion 

testing. Most agreed that it was a useful 

tool available to management to verify 

suspected alcohol or drug use. However, 

several expressed their reservations 

about whether supervisors, even with 

considerable training, can readily 

identify when someone is impaired by 

drugs, noting that alcohol is much easier 

to detect since there is generally an odor 

one can smell. Others stated that there 

is so much subjective judgment required 

to make a reasonable suspicion 

determination that such testing is 

problematic to implement—especially 

within a regulatory framework. Some 

noted that even when reasonable 

suspicion testing is required, as it is 

under the DOT regulations, supervisors 

often fail to utilize this option. Many 

commenters to the ANPRM underscored 

the importance of providing adequate 

training to supervisors on how to make 

such determinations. 

MSHA believes reasonable suspicion 

testing is necessary to allow individual 

mines to respond quickly and 

appropriately to individual situations. 

Thus, the proposed rule would require 

mine operators to include reasonable 

suspicion testing in their alcohol- and 

drug-free mine program. It specifies that 

mine operators’ determinations to 

conduct reasonable suspicion tests must 

be based on specific, contemporaneous, 

articulable observations concerning the 

appearance, behavior, speech, or body 

odors of the miners and that only those 

trained in making these determinations 

could do so. The proposed rule leaves 

it to the mine operator’s discretion to 

determine who should be trained and 

authorized as a supervisor to make these 

determinations. 

Subpart E—Operator Responsibilities, 

Actions, and Consequences 

Under the proposed rule, mine 

operators would generally be cited for 

failure to comply with the requirements 

to institute an alcohol- and drug-free 

mine policy and program. Several of 

those commenting on the ANPRM 

expressed concern about whether mine 

operators should be held accountable 

for the actions of miners who violate the 

policy prohibiting use of alcohol or 

drugs while performing safety-sensitive 

job duties. It is not MSHA’s intent to 

sanction mine operators who implement 

an alcohol- and drug-free mine program 

that includes alcohol- and drug-testing 

as prescribed in part 66, and who 

demonstrate a good faith effort to 

enforce their policy. However, mine 

operators who fail to implement and 

enforce these policies would be cited, 

specifically in cases where failure to 

enforce the provisions of the rule by 

monitoring miner compliance results in 

fatalities, accidents or injuries. MSHA 

invites comments as to the appropriate 

means for enforcing the provisions of 

this proposed rule. 

Section 66.400 Consequences to Miner 

for Failing an Alcohol or Drug Test or 

Refusal To Test 

Several commenters said that an 

alcohol and drug regulation should hold 

individual miners accountable for their 

actions rather than place responsibility 

solely on mine operators, and several of 

these commenters referenced the 

smoking materials prohibition as a 

precedent for doing so. A number of 

ANPRM commenters, including the 

National Mining Association (NMA) and 

the National Stone Sand and Gravel 

Association (NSSGA), specifically 

suggested that some form of monetary 

penalty, like the fines for smoking, 

should be levied on miners who violate 

prohibitions against using or being 

under the influence of alcohol and 

drugs at the mine. 

This proposed rule would not impose 

a monetary penalty on miners 

possessing, using or being under the 

influence of alcohol or drugs while at 

work. Rather, the proposed rule would 

require that miners who violate the 

alcohol and drug prohibitions be 


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immediately removed from performing 

safety-sensitive job duties and not 

allowed to perform such duties until 

their alcohol- and drug-free status is 

assured, as specified in section 66.406. 

The process for removal, referral and 

potential return to work has been 

modeled on the provisions of the DOT 

rule. 

Section 66.401 Operator Actions 

Pending Receipt of Test Results 

This section of the proposed rule 

specifies what actions mine operators 

would be required to take while 

awaiting the results of alcohol or drug 

tests. For those miners who are sent for 

testing based on random selection, mine 

operators would be required to allow 

miners to immediately return to 

performance of duties. However, in 

those cases where a miner is sent for 

testing either because the mine operator 

has determined that there is reason to 

suspect that the miner has been 

misusing prohibited substances or that 

he/she may have contributed to the 

cause of an accident, the mine operator 

would be required to remove the miner 

from performing safety-sensitive job 

duties until the test results are received. 

Doing so protects other miners from 

potential hazards when there is a reason 

to suspect that the miner being tested 

has been misusing prohibited 

substances. It is left to the mine 

operators’ discretion whether or not the 

miner can perform other non-safetysensitive job duties in the interim. The 

proposed rule would require that miners 

suspended from performing safetysensitive job duties pending results all 

be treated in the same manner with 

respect to this policy and that no action 

adversely affecting the miner’s pay and 

benefits pending the completion of the 

process would be taken. Whether or not 

the miner is paid during the suspension 

if the ultimate verified test result is 

positive, is left to the mine operator’s 

discretion subject to labor-management 

agreements. MSHA believes that 

removing those who are tested for a 

reasonable suspicion or after 

involvement in an accident while 

awaiting the results is necessary to 

protect the safety of all miners. 

Section 66.402 Substantiating 

Legitimate Use of Otherwise Prohibited 

Substances 

This proposed section states that it is 

up to the mine operator to make sure 

that miners have ample opportunity to 

demonstrate that any use of prohibited 

substances (as defined in this rule) has 

been authorized by a physician. It 

further specifies that the possession of 

a valid prescription alone is not 

sufficient proof of legitimate use. This 

provision allows the miner an 

opportunity to provide evidence that the 

prohibited substance(s) has been 

legitimately prescribed and allows the 

MRO to conduct a medical interview of 

each miner following a confirmed 

positive test; review the miner’s medical 

history; and consider not only the 

possession of a valid prescription, but 

any other relevant biomedical factors 

presented by the miner. The MRO may 

also direct miners to undergo further 

medical evaluation and/or contact the 

miner’s physician or other relevant 

personnel for further information. It is 

not the intent of this provision to have 

the MRO determine whether the use of 

a given substance is compatible with the 

performance of safety-sensitive job 

duties, as this is a determination that is 

best made by the miner’s physician. 

MSHA has modeled this provision on 

the DOT MRO review process and 

invites comments on the application of 

this process within the mining industry, 

specifically for those instances in which 

positive test results are received for 

prescription drug use that is legitimate 

and appropriate, but for which the MRO 

believes there may be safety concerns 

based on the nature of the medication. 

MSHA is also interested in learning 

from mine operators who already test 

for these additional substances about 

their experience differentiating 

legitimate from unauthorized use and 

for dealing with discovery of use of 

substances that, even when used as 

authorized, may have impairing effects 

incompatible with performance of 

safety-sensitive job duties. 

Section 66.403 Operator Actions After 

Receiving Verified Test Results 

This section specifies the actions 

mine operators must take upon 

receiving a verified alcohol- or drug-test 

result. For alcohol tests with a resulting 

BAC of 0.04 percent or higher or drug 

test results that are verified by the MRO 

as positive, adulterated or substituted, 

the mine operator must immediately 

remove the miner from performance of 

safety-sensitive job duties and refer him 

or her to an SAP without waiting for the 

subsequent results of any split specimen 

testing. However, the mine operator is 

not required to provide referral 

assistance upon any subsequent 

offenses. 

MSHA invites comments about the 

provisions on what action mine 

operators must take upon receiving 

alcohol- and drug-test results. 

Section 66.404 Evaluation and 

Referral 

This section specifies that in each 

case of an alcohol- and drug-free mine 

policy violation the miner would be 

provided with a listing of SAPs. 

However, the proposed rule would only 

require mine operators to offer job 

security to those miners who violate the 

alcohol- and drug-free mine policy for 

the first time provided they follow the 

SAP treatment recommendations and 

required return-to-duty procedures. For 

subsequent offenses, mine operators 

would have the discretion to specify 

disciplinary consequences, up to and 

including termination. Although MSHA 

believes it may be in the mine operator’s 

interest to pay for SAP and treatment 

services in order to retain experienced 

miners, it is left up to the mine 

operator’s discretion and collective 

bargaining agreements whether or not to 

do so. 

Many mine operators who responded 

to the ANPRM said they find offering 

assistance to those with alcohol and 

drug problems, most commonly through 

an Employee Assistance Program (EAP), 

a successful avenue for returning miners 

to work and assisting mine operators in 

retaining valued employees. In addition, 

one commenter expressed the opinion 

that rehabilitated miners are often an 

improvement to safety and a positive 

model to others. Several responders also 

commented on the value of an 

established avenue for employee 

assistance in emergency situations 

involving alcohol and drugs. Given this, 

the proposed rule prescribes a process 

through which miners who violate their 

employer’s alcohol- and drug-free mine 

policy would, on first offense, be 

referred for assessment by a Substance 

Abuse Professional (SAP) and referred 

for treatment as appropriate, and 

following this, be offered the 

opportunity to return to duty provided 

compliance with certain requirements. 

However, it is important to note that 

EAP programs include a range of 

services that go beyond those required 

to achieve recovery from alcohol and 

drug problems, and consequently 

MSHA believes that a more targeted 

approach is best for addressing the 

alcohol and drug issues outlined in the 

proposed rule. Therefore, MSHA only 

requires that mine operators make SAP 

services available rather than 

comprehensive EAPs. The proposed 

rule also allows the mine operator to 

make these services available to miners 

who have not violated the policy, as 

well as to those who have violated it 

more than once, as determined by the 

mine operator’s policy. 


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It is also important to note that 

although EAPs can perform SAP 

functions, the drug testing and 

compliance monitoring function of 

SAPs (as specified in this proposed 

rule), falls outside the scope of a typical 

EAP practice. Therefore, simply having 

an EAP would not necessarily meet this 

requirement unless the EAP agrees to 

perform the SAP monitoring functions. 

We invite comments on the inclusion of 

SAP functions without EAPs. 

Section 66.405 Return-to-Duty Process 

The proposed rule also specifies that 

prior to returning to performing safetysensitive job duties, miners must follow 

the treatment recommendations of the 

SAP, be re-evaluated by the SAP, and 

comply with the testing requirements 

established by the SAP. Miners and 

operators must abide by the 

recommendations of the agreed upon 

qualified SAP and may not seek a 

second opinion from another SAP 

following the initial evaluation. 

Although the SAP verifies compliance 

with the recommended treatment, it is 

the mine operator who decides whether 

the miner will return to work 

performing safety-sensitive job duties. 

However, the proposed rule specifies 

that a miner who has successfully 

completed the recommended treatment 

and passed the return-to-duty tests may 

not be discharged for his/her first 

offense. 

Several mine operators shared that 

their current policies include similar 

provisions. MSHA believes the 

proposed rule incorporates appropriate 

accountability but invites comments 

about the consequences that would be 

imposed upon miners by the proposed 

rule. MSHA also invites comments 

about the evaluation and referral 

process and the role of the SAP in 

recommending treatment and 

determining compliance. 

Section 66.406 Return-to-Duty Testing 

and Follow-Up Testing 

Return-to-duty testing is a one-time 

announced test that is required when a 

miner who tested positive in the past 

has completed required treatment and is 

ready to return to a position that 

involves performing safety-sensitive job 

duties. Follow-up testing is conducted 

periodically after a miner returns to 

work after completing treatment. It is 

administered on an unannounced, 

unpredictable basis for a pre-specified 

period of time. A number of 

commenters remarked on the 

importance of return-to-duty and 

follow-up testing to monitor compliance 

and provide assurances that those who 

have previously violated the alcoholand drug-free mine policy do not return 

to using prohibited substances. 

MSHA’s proposed rule includes 

return-to-duty and follow-up testing as 

a protection for mine operators and 

miners. MSHA proposes adopting this 

process as a way for mine operators to 

allow qualified, skilled miners to return 

to jobs where they are needed, while 

also providing protections to ensure 

they are safe to do so. 

Specifically, the proposed rule would 

require miners to have a verified 

negative return-to-duty drug-test and an 

alcohol-test reading of less than a BAC 

of 0.04 percent before returning to the 

performance of safety-sensitive job 

duties. The number and frequency of 

follow-up tests would be solely 

determined by the SAP with a minimum 

of six unannounced tests in the first 12 

months following return to work and 

continuing for a maximum of 24 

months. MSHA invites comments about 

the provisions for return-to-duty and 

follow-up testing. 

Subpart F—Recordkeeping and 

Reporting 

Section 66.500 Recordkeeping 

Requirements 

The proposed rule specifies that 

records of alcohol- and drug-tests would 

be protected as confidential 

communication between the mine 

operator and the miner. The proposed 

rule also prohibits sharing such records 

with others and requires secure storage 

so that they cannot be accessed by 

unauthorized individuals. MSHA 

believes this provision is necessary to 

ensure the privacy of individuals. 

MSHA, the mining industry, and 

individual mine operators can all 

benefit from establishing an accurate 

quantifiable baseline of alcohol and 

drug problems, and tracking the trends 

over time that result from the proposed 

rule. Consequently, the proposed rule 

would require mine operators to keep 

records on the number of miners in 

safety-sensitive job positions that are 

covered by the rule and results from the 

various types of tests performed. An 

alcohol- and drug-free mine program 

would be required to be made available 

upon request. Under the proposal, 

MSHA would be able to analyze the 

information, which could add to an 

understanding of the extent of alcohol 

and drug abuse among miners and to 

what degree such use contributes to 

accidents and injuries. 

Under the proposed rule, MSHA 

would require policy violation 

information (including drug-testing 

results) be kept consistent with existing 

record retention requirements. The 

agency seeks comments about what 

records would need to be kept and for 

how long a period of time. 

In addition, it is proposed that postaccident test results would be required 

to be included in reports of injuries and 

accidents as well as fatalities. 

Although MSHA is not currently 

proposing specific changes to 30 CFR 

part 50, it is the intent to consider how 

best to reflect the results of postaccident drug-testing. In order to assess 

whether alcohol or drugs have been 

identified as contributing causes of 

accidents in the past and to understand 

how evidence of such use was 

addressed in accident reports, a review 

was conducted of those identifiable 

available fatal and non-fatal accident 

reports where alcohol or drugs were 

mentioned. Although it was not possible 

to determine with certainty, this 

examination suggested that there are 

more accidents (both fatal and non-fatal) 

than reflected in reports where alcohol 

or drugs are a contributing or root cause. 

This is based on the observation that, in 

both the non-fatal and fatal accident 

reports, there was a lack of uniformity 

concerning how alcohol and/or drug 

factors were considered and reported. 

Specifically, there was no regularity as 

to: 

• Procedures and/or criteria for 

investigating the role of alcohol/drugs; 

• The type of information provided 

from the investigations concerning 

alcohol/drugs; and 

• How the information about alcohol/ 

drugs is reported (i.e., there is no 

standard template). 

Since the mining industry currently 

lacks a uniform policy concerning when 

alcohol- and/or drug-testing is 

conducted after accidents or injuries, it 

is not surprising that there is 

inconsistent reporting of such data. 

Making alcohol- and drug-tests a 

standard part of an accident 

investigation and reporting the results 

could go a long way toward providing 

better information about the extent to 

which alcohol and drug use contributes 

to accidents in the mining industry. 

However, the test results alone will not 

sufficiently determine the role of a 

substance in an accident. Rather, the 

industry must consider the test results 

in light of the facts of the accident and 

the effects of the particular substance in 

question. To fully understand the role of 

alcohol or drugs, it might be helpful to 

develop a standard set of procedures/ 

criteria for investigating the role of 

alcohol/drugs in non-fatal and fatal 

accidents and establish a taxonomy 

structure for information gathering and 

reporting. 


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26The 2006 National Survey on Drug Use and 

Health (NSDUH) is the annual survey and primary 

source of information on the use of illicit drugs, 

alcohol, and tobacco in the civilian, noninstitutionalized population of the United States 

aged 12 years old or older. 

27The survey defined current illicit drug use as 

the non-medical use of marijuana/hashish, cocaine 

(including crack), heroin, hallucinogens, inhalants 

or prescription-type drugs. Non-medical use is 

defined as the use of prescription-type drugs not 

prescribed for the respondent by a physician or 

used only for the experience or feeling they caused. 

Non-medical use of any prescription-type pain 

reliever, sedative, stimulant, or tranquilizer does 

not include over-the counter drugs. Non-medical 

use of stimulants includes methamphetamine use. 

28Substance Abuse and Mental Health Services 

Administration. (2007). Results from the 2006 

National Survey on Drug Use and Health: National 

Findings (Office of Applied Studies, NSDUH Series 

H–32, DHHS Publication No. SMA 07–4293). 

Rockville, MD. 

29 Ibid. 

In addition, investigators may lack the 

level of expertise needed to reliably: 

• Identify alcohol and drug 

‘‘evidence’’ at the post-accident scene; 

• Interpret the meaning of alcoholand drug-test results; and 

• Assess whether identified alcohol/ 

drug involvement and their effects 

could have contributed to the fatality 

outcome by affecting behaviors such as 

attention, concentration, judgment, 

decision-making, or motor skills. 

Therefore, it might be helpful to more 

systematically capture and report how 

alcohol and/or drugs are identified/ 

tested positive, even when not deemed 

to be a contributory or root cause. 

Furthermore, an explanation of why the 

alcohol/drug use was ruled out or 

discounted would be informative. 

Finally, it may be useful to provide 

training to investigators so that they 

recognize signs that alcohol and/or 

drugs may have been involved and 

know what questions to ask about 

possible involvement when 

investigating accidents. MSHA invites 

comments about how best to reflect 

post-accident test results in required 

reports following both fatal and nonfatal accidents. 

V. Executive Order 12866 

Executive Order (E.O.) 12866 requires 

that regulatory agencies assess both the 

costs and benefits of regulations. To 

comply with this requirement, MSHA 

has prepared a Preliminary Regulatory 

Economic Analysis (PREA) for this 

proposed rule. The PREA examines the 

costs and benefits of the proposed 

requirements for coal and metal/non 

metal (M/NM) mine operators to 

establish an alcohol- and drug-free mine 

program that includes a written policy, 

employee education, supervisory 

training, alcohol- and drug-testing for 

miners who perform safety-sensitive job 

duties and their supervisors, referrals to 

assistance for miners who violate the 

policy, and recordkeeping provisions. 

General administrative and clerical 

personnel are not covered by these 

proposed requirements. 

The PREA also contains supporting 

data and explanation for the summary 

economic materials presented in this 

preamble, including data on the mining 

industry, feasibility, small business 

impacts, and paperwork. The PREA is 

located on MSHA’s Web site at http:// 

www.msha.gov/REGSINFO.HTM. A 

copy of the PREA can be obtained from 

MSHA’s Office of Standards, 

Regulations and Variances at the 

address in the ADDRESSES section of the 

preamble. MSHA requests comments on 

all the estimates of costs and benefits 

present in this PREA and on the data 

and assumptions the agency used to 

develop estimates. 

Under E.O. 12866, a significant 

regulatory action is one meeting any of 

a number of specified conditions, 

including the following: Having an 

annual effect on the economy of $100 

million or more, creating a serious 

inconsistency or interfering with an 

action of another agency, materially 

altering the budgetary impact of 

entitlements or the rights of entitlement 

recipients, or raising novel legal or 

policy issues. Based on the PREA, 

MSHA has determined that this 

proposed rule would not have an annual 

effect of $100 million or more on the 

economy; therefore, it is not an 

economically significant regulatory 

action. However, MSHA has concluded 

that the proposed rule is otherwise 

significant because it raises novel legal 

or policy issues. 

A. Population at Risk 

The proposed rule establishes new 

standards for all mine operators. With 

respect to the coal mining industry, the 

proposed rule would apply to 2,013 coal 

mines employing 80,256 miners and to 

2,966 coal contractors with an 

additional 36,227 non-office employees, 

using MSHA’s Office of Program 

Evaluation and Information Resources 

(PEIR) data for 2007. With respect to the 

M/NM mines, the proposed rule would 

apply to 12,773 M/NM mines employing 

159,644 miners and to 5,302 M/NM 

contractors with an additional 64,333 

non-office employees, using PEIR data 

for 2007. Office workers who have only 

clerical or administrative duties are not 

covered by the proposed requirements 

for drug-testing or training. In total, this 

rule would apply to approximately 

23,054 mine operators (i.e., mines and 

contractors) and 340,460 miners (i.e., 

miners and non-office employees of 

contractors). 

B. Benefits 

The use of alcohol and drugs in the 

workplace negatively affects U.S. 

industry through lost productivity, 

workplace accidents and injuries, 

employee absenteeism, low morale, and 

increased illness. The loss to U.S. 

companies due to employees’ alcohol 

and drug use and related problems is 

estimated at billions of dollars per year. 

This proposed rule would require mine 

operators to establish an alcohol- and 

drug-free workplace program to prevent 

workplace accidents, injuries and 

fatalities in mines caused by the use or 

abuse of alcohol and/or drugs. 

MSHA currently prohibits the use of 

intoxicating beverages and narcotics in 

or around M/NM mines; and persons 

under the influence of alcohol or 

narcotics are not permitted on the job 

site. However, since these requirements 

only apply to M/NM operators, MSHA 

believes that uniform policies and 

procedures are needed to prevent the 

misuse of alcohol and drugs that could 

impair the functioning of miners and 

result in the injury or death in both coal 

and M/NM mines. 

A major benefit from this rulemaking 

would be the prevention of injuries and 

fatalities resulting from accidents 

caused by neglect or error on the part of 

individuals whose judgment or motor 

skills may be impaired by the use of 

alcohol and/or drugs. MSHA’s reporting 

process does routinely include inquiries 

into the use of alcohol or drugs as 

contributing factors in mine accidents. 

Consequently, there may have been 

accidents in which alcohol or drugs 

were involved but were not reported to 

inspectors or identified during MSHA 

investigations. A preliminary review by 

MSHA of fatal and non-fatal mine 

accident records revealed a number of 

instances in which alcohol, drugs, or 

drug paraphernalia were found or 

reported at the scene, or where the postaccident toxicology screens of those 

involved in an accident revealed the 

presence of alcohol or drugs. 

The U.S. Department of Health and 

Human Services, Substance Abuse and 

Mental Health Services 

Administration’s (SAMHSA) 2006 

National Survey on Drug Use and 

Health 26 reports that in 2006, of the 

17.9 million current illicit drug 27 users 

age 18 and over, 13.4 million (74.9 

percent) were employed.28 Similarly, 

among 54 million adult binge drinkers, 

42.9 million (79.4 percent) were 

employed, and among 16.3 million 

persons reporting heavy alcohol use, 

12.9 million (79.2 percent) were 

employed.29 Also, in 2006, of the 20.6 


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30 Ibid. 31 Ibid. 32Weber, W., and Cox, C. ‘‘Work-Related Fatal 

Injuries in 1998’’ Compensation and Working 

Conditions, Spring 2001, pp. 27–29. 33 Ibid. 34Substance Abuse and Mental Health Services 

Administration (2007). The Worker Substance Use 

and Workplace Policies and Programs Report 

presents findings on substance use among workers 

and on workplace drug policy and programs from 

the 2002, 2003, and 2004 National Surveys of Drug 

Use and Health. (Office of Applied Studies, 

Analytic Series: A–29). 35The Standard Occupation System categorizes 

occupations into 21 groups. The Construction 

Trades and Extraction Workers group includes 

mining. 36The NAICS, which replaced the Standard 

Industry Classification (SIC), categorizes all 

industries into 19 major groups and is used to 

classify industries in the Report. 

million adults classified with substance 

dependence or abuse, 12.7 million (61.5 

percent) were employed full-time.30

Furthermore, among the U.S. working 

age population (ages 18–64) diagnosed 

with a substance use disorder, 62.7 

percent were employed full-time.31

In a 1998 analysis of available 

toxicology reports across a variety of 

occupations and within different 

industries, the Bureau of Labor Statistics 

(BLS) estimated that as many as one in 

five workplace fatalities had a positive 

test for alcohol or drugs.32 BLS reported 

that alcohol was the substance found 

most often, appearing in 48 percent of 

positive reports.33

SAMHSA’s June 2007 Worker 

Substance Use and Workplace Policies 

and Programs Report 34 shows alcohol 

and drug use and abuse by standard 

occupational and industry 

classifications. Illicit drug use was 

reported at 15.1 percent and heavy 

alcohol use was 17.8 percent among 

full-time workers aged 18–64 in the 

construction, trade, and excavation 

occupational group.35 The data also 

show that in the mining 36 industry, 13.3 

percent of full-time miners were heavy 

alcohol users and 7.3 percent admitted 

that they used illicit drugs within the 

past month. This does not mean that 

those surveyed admitted to either being 

under the influence or having used 

alcohol or drugs at work or immediately 

prior to work. However, the statistics do 

suggest a cause for employer concern 

since there are no guarantees that those 

who drink heavily or use illicit drugs 

would constrain such behaviors, which 

have the potential to seriously 

jeopardize mine safety, to off-duty 

hours. Many firms find that addressing 

alcohol and drug use is well worth the 

time and money involved in a drugtesting program. For example, after 

MSHA published its 2005 ANPRM, an 

industry representative said, ‘‘The 

principle benefit is it’s a safe workplace 

due to employees operating out of the 

influence of drugs or alcohol.’’ A 

commenter from a trade association 

said, ‘‘The costs to a mine operation of 

substance abuse in worker health and 

safety, as well as production losses, are 

already a powerful incentive to 

maintain an effective substance abuse 

program.’’

The purpose of the requirements in 

the proposed rule is to establish alcoholand drug-free mine programs in all mine 

operations. These programs are 

designed to help prevent accidents, 

injuries, and fatalities resulting from the 

misuse of alcohol and use of prohibited 

drugs by miners who perform safetysensitive job duties on mine property. 

An alcohol- and drug-free mine program 

that includes a written policy, employee 

education, supervisory training, alcoholand drug-testing for miners that perform 

safety-sensitive job duties and their 

supervisors, and referrals to assistance 

for miners who violate the policy, 

would decrease injuries and fatalities. 

The number of fatalities associated with 

alcohol or drugs is difficult to quantify 

due to a lack of consistency in reporting 

the possibility of alcohol or drug 

involvement in injuries and fatalities. 

MSHA’s analysis of fatal accidents 

from 1975 to 2007 revealed that 24 of 

978 reported deaths involved alcohol or 

drugs. From 1983 through 2007, there 

were 593,047 non-fatal accidents 

reported, with 56 possibly involving 

alcohol or drugs. MSHA believes these 

figures under-represent the negative 

effects of alcohol and drugs in the mines 

because of a current lack of uniformity 

in investigation and particularly in 

reporting procedures. 

Mine operators are not currently 

required to have an alcohol- and drugfree mine program for preventing the 

use of alcohol and drugs that could 

impair the function of miners and result 

in the injury or death of themselves or 

their coworkers. However, MSHA 

believes this proposed rule would 

benefit both mine operators and miners 

in the following ways: 

(1) Mine operators would not have to 

hire new miners who cannot pass a preemployment test, so all mine operators 

would benefit from not hiring persons 

shown to misuse alcohol and/or drugs. 

(2) Small mines in particular would 

benefit by implementing drug-testing 

procedures, since many small mines 

currently do not test for drug use and 

hence employ those unable to pass preemployment drug-tests required by 

larger mines. (3) All mine operators 

across the country would be subject to 

consistent requirements. (4) Miners 

would benefit by having job security in 

the event that they self-disclose an 

alcohol or drug problem or seek 

treatment upon their first positive 

alcohol-or drug-test. 

Not implementing this rule would 

allow accidents related to alcohol and 

drugs, including cases where innocent 

co-workers are harmed, to continue to 

be underreported and possibly allow 

accidents related to alcohol and drugs to 

go unabated. 

C. Compliance Costs 

MSHA estimated the first-year costs 

and the annual recurring costs of the 

proposed rule. MSHA estimated costs to 

mine operators on the following 

proposed provisions: Establish an 

alcohol- and drug-free mine program 

that includes a includes a written 

policy, employee education, supervisory 

training, alcohol- and drug-testing for 

miners that perform safety-sensitive 

duties and their supervisors, referrals to 

assistance for miners who violate the 

policy, and record retention. 

MSHA estimates that the total cost for 

the initial year of the proposed rule 

would be approximately $16,008,983 for 

all coal and M/NM mine operators and 

mine contractors. Of the $16.0 million, 

MSHA estimates approximately 

$1,253,065 in costs are related to the 

establishment of an alcohol- and drugfree mine program that includes a 

written policy, $7,150,544 in costs are 

for the alcohol- and drug-testing; 

$6,840,971 in costs are related to 

training requirements, and $764,402 are 

related to the record retention 

provisions. Table 1 provides a summary 

of the approximate first year costs of the 

proposed rule by mine size and 

proposed provision. 


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37U.S. DOE, EIA, ‘‘Annual Coal Report 2006,’’

Table 28, October 2007. 

38 Ibid. 

TABLE 1—SUMMARY OF THE APPROXIMATE FIRST YEAR COSTS

Proposed provisions 

Employees Total first year 

costs 1–19 20–500 501+ 

Written policy ................................................................................................... $1,074,099 $178,490 $476 $1,253,065 

Alcohol and drug testing .................................................................................. 2,479,298 4,512,894 158,352 7,150,544 

Training ............................................................................................................ 2,291,625 4,396,829 152,517 6,840,971 

Recordkeeping ................................................................................................. 309,012 401,312 54,079 764,403 

Total First Year Costs ............................................................................... 6,154,034 9,489,524 365,424 16,008,983 

MSHA estimated annual recurring 

cost thereafter for all mine operators and 

contractors is $13,008,951. Of the $13.0 

million, MSHA estimates approximately 

$7,150,544 in costs are for the alcoholand drug-testing; $5,094,004 in costs are 

related to training requirements, and 

$764,402 are related to the record 

retention provisions. Table 2 provides a 

summary of the approximate annual 

recurring costs of the proposed rule by 

mine size and proposed provision. 

TABLE 2—SUMMARY OF THE APPROXIMATE ANNUAL RECURRING COSTS

Proposed provisions 

Employees Total annual 

recurring costs 1–19 20–500 501+ 

Alcohol and drug testing .................................................................................. $2,479,298 $4,512,894 $158,352 $7,150,544 

Training ............................................................................................................ 1,712,395 3,268,844 112,765 5,094,004 

Recordkeeping ................................................................................................. 309,012 401,312 54,079 764,403 

Total Annual Recurring Costs .................................................................. 4,500,705 8,183,050 325,196 13,008,951 

D. Feasibility 

MSHA has concluded that the 

requirements of the proposed rule are 

technologically and economically 

feasible within the coal and M/NM 

mining sectors. 

This proposed rule is not a 

technology-forcing standard and does 

not involve activities on the frontier of 

scientific knowledge. In addition, the 

proposed rule would not require the 

purchase of any machinery or 

equipment to implement these 

standards. Therefore, we have 

concluded that this proposed rule is 

technologically feasible. 

The estimated compliance cost of the 

proposed rule for all mines in the first 

year is $16.0 million and in subsequent 

years the annual recurring cost is 

approximately $13.0 million, which is 

0.00016 percent and 0.00013 percent, 

respectively, of its annual revenue of 

$99.4 billion. MSHA concludes that the 

final rule would be economically 

feasible for both the coal and M/NM 

industries because the annual recurring 

compliance costs are well below one 

percent of the estimated annual revenue 

for all mines. 

VI. Regulatory Flexibility Act and 

Small Business Regulatory Enforcement 

Fairness Act 

In accordance with the Regulatory 

Flexibility Act (RFA) of 1980, as 

amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA), MSHA has analyzed the 

impact of the proposed rule on small 

entities. Based on the analysis, MSHA 

certifies that the proposed rule does not 

have a significant economic impact on 

a substantial number of small entities. 

The factual basis for this certification is 

presented in the PREA and summarized 

below. 

A. Definition of a Small Mine 

Under the RFA, in analyzing the 

impact of a rule on small entities, 

MSHA must use the Small Business 

Administration’s (SBA) definition for a 

small entity or, after consultation with 

the SBA Office of Advocacy, establish 

an alternative definition for the mining 

industry by publishing that definition in 

the Federal Register for notice and 

comment. MSHA has not established an 

alternative definition, and hence is 

required to use the SBA’s definition. 

The SBA defines a small entity in the 

mining industry as an establishment 

with 500 or fewer employees (13 CFR 

121.201). This analysis complies with 

the legal requirements of the RFA for an 

analysis of the impacts on ‘‘small 

entities.’’ MSHA concludes that it can 

certify that the final rule would not have 

a significant economic impact on a 

substantial number of small entities. 

B. Factual Basis for Certification 

MSHA’s analysis of the economic 

impact on ‘‘small entities’’ begins with 

a ‘‘screening’’ analysis. The screening 

compares the estimated cost of a rule for 

small entities to the estimated revenue. 

When the estimated cost is less than one 

percent of estimated revenue (for the 

size categories considered), MSHA 

believes it is generally appropriate to 

conclude that the proposed rule does 

not have a significant economic impact 

on a substantial number of small 

entities. If estimated costs are equal to 

or exceed one percent of revenues, 

MSHA would investigate whether 

further analysis is required. 

Coal Mine Revenues 

Revenues for coal mines are derived 

from data on underground and surface 

coal prices and tonnage. Total 

underground coal production in 2007 

was approximately 349 million tons. 

The 2006 price of underground coal was 

$38.28 per ton.37 To estimate the 2007 

price, the 2006 price was increased by 

5.5 percent to $40.37, using the Bureau 

of Labor Statistics producer price index 

for underground bituminous coal. Total 

estimated revenue in 2007 for 

underground coal production was $14.1 

billion. Multiplying tons by the 2007 

price per ton, 2007 underground coal 

revenue, by mine size, is $11.2 billion 

for mines with 1–500 employees. 

Total surface coal production in 2007 

was approximately 792 million tons. 

The 2006 price of surface coal was 

$18.88 per ton.38 To estimate the 2007 


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price, the 2006 price was increased by 

8.7 percent to $20.52, using the Bureau 

of Labor Statistics producer price index 

for surface bituminous coal. Total 

estimated revenue in 2007 for surface 

coal production was $16.2 billion. 

Multiplying tons by the 2007 price per 

ton, 2007 surface coal revenue, by mine 

size, is $11 billion for mines with 1–500 

employees. 

Underground and surface coal 

revenue is estimated to be 

approximately $22.2 billion for mines 

with 1–500 employees. Underground 

and surface coal revenues for all mines 

are estimated to be $30.3 million. 

M/NM Mine Revenues 

Total 2007 revenues for M/NM mines 

are estimated to be $68 billion. Total 

M/NM 2007 employment hours are 

362,707,747. Estimated revenues were 

divided by employment hours to arrive 

at an average of $187.48 revenue per 

hour. Revenue for surface M/NM mines 

with 1–500 employees is approximately 

$54.8 billion (292.6 million employment 

hours × $187.48). Revenue for 

underground M/NM mines with 1–500 

employees is approximately $5.1 billion 

(27.2 million employment hours × 

$187.48). Thus, revenues for surface and 

underground mines with 1–500 

employees are estimated to be $59.9 

billion. 

Results of Screening Analysis 

The compliance cost of the proposed 

rule for coal mines and M/NM with 1–

500 employees as a percent of revenues 

is 0.0192 percent for the first year and 

0.0156 percent for ongoing years. This 

suggests that the proposed rule would 

not have a significant economic impact 

on a substantial number of small 

entities. 

VII. Paperwork Reduction Act 

This NPRM contains information 

collection provisions which are subject 

to review by the Office of Management 

and Budget (OMB) under the Paperwork 

Reduction Act of 1995 (PRA). The title, 

description, and respondent description 

of the information collections are shown 

in the following paragraphs with an 

estimate of the annual reporting burden. 

Included in the estimate is the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

of information. 

Title: Alcohol- and Drug-Free Mines: 

Policy, Prohibitions, Testing, Training, 

and Assistance. 

Description: Alcohol- and Drug-Free 

Mines: Policy, Prohibitions, Testing, 

Training, and Assistance establishes a 

requirement for mine operators to set up 

alcohol- and drug-free mine programs 

that include a written policy, employee 

education, supervisory training, alcoholand drug-testing for miners that perform 

safety-sensitive job duties and their 

supervisors, and referrals to assistance 

for miners who violate the policy. The 

proposed rule would also require those 

who violate the prohibitions to be 

removed from the performance of safetysensitive job duties until they complete 

the recommended treatment and their 

alcohol- and drug-free status is 

confirmed by a return-to-duty test. 

These guidelines are established under 

authority of 30 U.S.C. 811. 

The proposed rule establishes 

paperwork requirements at section 

66.201 and subpart F. In addition, 

certain paperwork requirements at 

section 66.300 are incorporated by 

reference from title 49 CFR part 40, 

Procedures for Transportation 

Workplace Drug and Alcohol Testing 

Programs. 

This proposed rule requires that mine 

operators establish and implement a 

written alcohol- and drug-free mine 

policy and requires mine operators to 

keep and retain test records. The policy 

that can be based on a model provided 

by MSHA and posted in common areas 

accessible to miners should inform 

workers of the prohibitions against 

alcohol and drug use; the consequences 

for their use; and the existence of 

training requirements for certain miners 

and what those training requirements 

are. In addition, mine operators are 

required to maintain records of the 

following information: The number of 

workers in safety-sensitive positions; 

the total number of miners tested; the 

number of verified positive alcohol and 

drug tests for each substance; which 

miners were tested; testing dates; and 

test results. Mine operators are also 

required to maintain records of 

instances in which post-accident or 

reasonable suspicion testing is not 

conducted within the timeframes 

required by the rule. Such records 

should include an explanation of the 

reasons why testing was not conducted 

as required. Mine operators would be 

required to retain these records for at 

least three years. 

By incorporating title 49 CFR part 40 

by reference, these guidelines also 

require the OMB-approved federal 

Custody and Control Form (CCF) to 

document the integrity and security of 

alcohol- and drug-testing specimens 

from the time of collection through 

analysis. 

Description of Respondents: Mine 

operators/or service agents acting on 

behalf of affected mine operators. 

Response Burden Estimate: We 

anticipate the total annual response 

burden imposed by these guidelines to 

be 72,791 hours for the initial year and 

49.737 hours per year thereafter. The 

initial year burden estimate is based on 

the following: (1) A mine owner is 

estimated to require an average of one 

hour to develop and post the required 

drug-free workplace policy using the 

MSHA sample. Based on a total of 

23,054 mines, this results in 23,054 

burden hours for development and 

posting of the policy. (2) The annual 

maintenance for non-substantive 

changes of the written policy is 

estimated at 0.167 burden hours per 

mine. Based on a total of 23,054, this 

results in 3,850 burden hours. (3) The 

annual recordkeeping to maintain test 

records is estimated at 0.167 burden 

hours per mine. Based on a total of 

23,054 mines, this results in 3,850 

burden hours for recordkeeping and 

retention. (4) We estimate the 

completion of 201,618 Alcohol Testing 

Forms and federal Custody and Control 

Forms each year. This is based on a total 

miner population of 340,460 with 10 

percent of the population being 

subjected to random testing for alcohol 

and drugs and about 20 percent being 

subjected to other forms of testing for 

alcohol and drugs that include preemployment, post-accident, reasonable 

suspicion, return-to-duty, and follow-up 

testing. The average response burden for 

the Alcohol Testing Forms is estimated 

at 0.167 burden hours per mine. This 

results in 16,835 burden hours (0.167 

hours per form × 100,809 forms). The 

average response burden for completion 

of the federal Custody and Control 

Forms is estimated by the U.S. 

Department of Health and Human 

Services as 0.25 burden hours per form, 

computed as follows: 5 minutes for each 

donor (miner), 4 minutes for the 

collector, 3 minutes for the laboratory, 

and 3 minutes for the Medical Review 

Officer. This results in 25,202 hours of 

burden (0.25 hours per form × 100,809 

forms). 

The subsequent year estimate of 

49,737 burden hours, where the burden 

associated with the development of the 

written policy is excluded, is based on 

3,850 hours to maintain the written 

policy, 3,850 hours for recordkeeping 

and retention, 16,835 hours for 

completion of the Alcohol Testing Form 

and 25,202 hours for completion of the 

federal Custody and Control Form. 

Individuals and organizations may 

submit comments on these burden 

estimates or any other aspect of these 

information collection provisions, 

including suggestions for reducing the 


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burden. MSHA is particularly interested 

in comments which: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submissions 

of responses. 

VIII. Other Regulatory Considerations 

A. The Unfunded Mandates Reform Act 

of 1995 

MSHA has reviewed the proposed 

rule under the Unfunded Mandates 

Reform Act of 1995 (2 U.S.C. 1501 et 

seq.). MSHA has determined that the 

proposed rule would not include any 

federal mandate that may result in 

increased expenditures by state, local, 

or tribal governments, and it would not 

increase private-sector expenditures by 

more that $100 million in any one year 

or significantly or uniquely affect small 

governments. Accordingly, the 

Unfunded Mandates Reform Act of 1995 

requires no further agency action or 

analysis. 

B. The Treasury and General 

Government Appropriations Act of 

1999: Assessment of Federal 

Regulations and Policies on Families 

This proposed rule will have no effect 

on family well-being or stability, marital 

commitment, parental rights or 

authority, or income or poverty of 

families and children. Accordingly, 

section 654 of the Treasury and General 

Government Appropriations Act of 1999 

(5 U.S.C. 601 note) requires no further 

agency action or analysis. 

C. Executive Order 12630: Government 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

This proposed rule would not 

implement a policy with takings 

implications. Accordingly, E.O. 12630, 

Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights, requires no further agency action 

or analysis. 

D. Executive Order 12988: Civil Justice 

Reform 

This proposed rule was written to 

provide a clear legal standard for 

affected conduct and was carefully 

reviewed to eliminate drafting errors 

and ambiguities, so as to minimize 

litigation and undue burden on the 

federal court system. Accordingly, this 

proposed rule meets the applicable 

standards provided in section 3 of E.O. 

12988, Civil Justice Reform. 

E. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This proposed rule would have no 

adverse impact on children. 

Accordingly, E.O. 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks, as amended by 

E.O. 13229 and 13296, requires no 

further agency action or analysis. 

F. Executive Order 13132: Federalism 

The proposed rule would not have 

‘‘federalism implications’’ because it 

would not ‘‘have substantial direct 

effects on the states, on the relationship 

between the national government and 

the states, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

Accordingly, E.O. 13132 requires no 

further agency action or analysis. 

G. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This proposed rule would not have 

‘‘tribal implications’’ because it does not 

‘‘have substantial direct effects on one 

or more Indian tribes, on the 

relationship between the federal 

government and Indian tribes, or on the 

distribution of power and 

responsibilities between the federal 

government and Indian tribes.’’

Accordingly, E.O. 13175, Consultation 

and Coordination with Indian Tribal 

Governments, requires no further 

agency action or analysis. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed rule has been reviewed 

for its impact on the supply, 

distribution, and use of energy because 

it applies to the underground coal 

mining sector. This proposed rule will 

not impose any ‘‘significant energy 

action’’ because it will not be ‘‘likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy 

* * * (including a shortfall in supply, 

price increases, and increased use of 

foreign supplies).’’ Accordingly, E.O. 

13211, Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use, requires no further 

agency action or analysis. 

I. Executive Order 13272: Proper 

Consideration of Small Entities in 

Agency Rulemaking 

MSHA has reviewed the proposed 

rule to assess and take appropriate 

account of its potential impact on small 

businesses, small governmental 

jurisdictions, and small organizations. 

MSHA has determined and certified that 

the proposed rule does not have a 

significant economic impact on a 

substantial number of small entities. 

List of Subjects 

30 CFR Part 56 

Chemicals, Electric power, 

Explosives, Fire prevention, Hazardous 

substances, Metals, Mine safety and 

health, Noise control, Reporting and 

recordkeeping requirements. 

30 CFR Part 57 

Chemicals, Electric power, 

Explosives, Fire prevention, Gases, 

Hazardous substances, Metals, Mine 

safety and health, Noise control, 

Radiation protection, Reporting and 

recordkeeping requirements. 

30 CFR Part 66 

Alcohol- and drug-testing, Mine safety 

and health, Reporting and 

recordkeeping requirements. 

Dated: August 28, 2008. 

Richard E. Stickler, 

Acting Assistant Secretary for Mine Safety 

and Health. 

For the reasons set forth in the 

preamble, and under the authority of the 

Federal Mine Safety and Health Act of 

1977, MSHA is proposing to amend 

chapter I of title 30 of the Code of 

Federal Regulations as follows. 

PART 56—SAFETY AND HEALTH 

STANDARDS—SURFACE METAL AND 

NON METAL MINES 

1. The authority citation for part 56 

continues to read as follows. 

Authority: 30 U.S.C. 811. 

Subpart S [Amended] 

§ 56.20001 [Removed and Reserved] 

2. Remove and reserve § 56.20001. 


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PART 57—SAFETY AND HEALTH 

STANDARDS—UNDERGROUND 

METAL AND NON METAL MINES 

3. The authority citation for part 57 

continues to read as follows. 

Authority: 30 U.S.C. 811. 

Subpart S [Amended] 

§ 57.20001 [Removed and Reserved] 

4. Remove and reserve § 57.20001. 

5. A new subchapter N and a new part 

66 are added to title 30 of the Code of 

Federal Regulations to read as follows. 

30 CFR Subchapter N—Uniform Mine Safety 

Regulations 

PART 66—ALCOHOL- AND DRUGFREE MINES: POLICY, PROHIBITIONS, 

TESTING, TRAINING, AND 

ASSISTANCE 

Sec. 

Subpart A—General 

66.1 Purpose. 

66.2 Applicability. 

66.3 Definitions. 

Subpart B—Prohibitions 

66.100 Prohibited substances. 

66.101 Prohibited behaviors. 

Subpart C—Alcohol- and Drug-Free Mine 

Program Requirement 

66.200 Purpose and scope. 

66.201 Written policy. 

66.202 Education and awareness program 

for miners. 

66.203 Training program for supervisors. 

66.204 Miner assistance following 

admission of use of prohibited 

substances. 

Subpart D—Alcohol- and Drug-Testing 

Requirements 

66.300 Purpose and scope. 

66.301 Substances subject to mandatory 

testing. 

66.302 Additional testing. 

66.303 Circumstances under which testing 

will be required. 

66.304 Pre-employment testing. 

66.305 Random testing. 

66.306 Post-accident testing. 

66.307 Reasonable suspicion testing. 

Subpart E—Operator Responsibilities, 

Actions, and Consequences 

66.400 Consequences to miner for failing an 

alcohol or drug test or refusal to test. 

66.401 Operator actions pending receipt of 

test results. 

66.402 Substantiating legitimate use of 

otherwise prohibited substances. 

66.403 Operator actions after receiving 

verified test results. 

66.404 Evaluation and referral. 

66.405 Return-to-duty process. 

66.406 Return-to-duty and follow-up 

testing. 

Subpart F—Recordkeeping and Reporting 

66.500 Recordkeeping requirements. 

Authority: 30 U.S.C. 811. 

30 CFR Subchapter N—Uniform Mine Safety 

Regulations 

PART 66—ALCOHOL- AND DRUGFREE MINES: POLICY, PROHIBITIONS, 

TESTING, TRAINING AND 

ASSISTANCE 

Subpart A—General 

§ 66.1 Purpose. 

This part establishes the requirements 

for mine operators to develop an 

alcohol- and drug-free mine program to 

prevent accidents, injuries, and fatalities 

resulting from the misuse of prohibited 

substances by miners performing safetysensitive job duties and their 

supervisors. Alcohol- and drug-free 

mine programs established prior to the 

effective date of this rule that include 

consistent policies, and alcohol- and 

drug-testing programs, and provide at 

least the same level of protection as 

these requirements, are in compliance 

with this standard. 

§ 66.2 Applicability. 

(a) The possession or misuse of 

prohibited substances, except when 

used according to a valid prescription, 

is prohibited for all persons on and 

around mine property. 

(b) The alcohol- and drug-testing 

provisions in subpart D apply only to 

those miners who perform safetysensitive job duties. Management and 

administrative personnel who supervise 

the performance of safety-sensitive job 

duties are also considered to hold 

safety-sensitive positions; however, 

general administrative and clerical 

personnel are not. Such determinations 

shall be made consistent with the 

requirements of 30 CFR parts 46 and 48 

for who must take comprehensive miner 

training. 

(c) Mine operators must inform all 

miners and contractors who perform 

work on their mine property of the 

requirements under this rule. 

§ 66.3 Definitions. 

As used in this part: 

Adulterated specimen. A specimen 

that contains a substance that is not 

expected to be present in human urine, 

or contains a substance expected to be 

present but is at a concentration so high 

that it is not consistent with human 

urine. 

Alcohol. The intoxicating agent in 

beverage alcohol, ethyl alcohol, or other 

low molecular weight alcohols 

including methyl and isopropyl alcohol. 

Alcohol concentration. The alcohol in 

a volume of breath expressed in terms 

of grams of alcohol per 210 liters of 

breath as indicated by a breath test 

under this part. This provides an 

indication of the blood alcohol 

concentration (BAC) level which is 

equated with impairment levels. 

Breath Alcohol Technician (BAT). A 

person who instructs and assists miners 

in the alcohol-testing process and 

operates an evidential breath testing 

device. A BAT can be an employee of 

the mine operator. A BAT must have 

received qualifications training that 

includes training in alcohol-testing 

procedures and the operation of alcoholtesting devices. 

Confirmed drug test. A confirmation 

test result received by a Medical Review 

Officer (MRO) from a laboratory. 

Cut-off levels. The cut-off 

concentration of drug metabolite that is 

used for each drug class to call a urine 

specimen negative or positive. Based on 

the cut-off concentration used for each 

different drug class, a negative specimen 

is any specimen that contains no drug 

or whose apparent concentration of drug 

or drug metabolite is less than the cutoff concentration used for that drug or 

drug class. 

Drug-free workplace program. A 

program that prohibits the possession or 

misuse of prohibited substances while 

working and includes five elements 

(written policy, education, training, 

testing, and referrals for assistance) 

designed to prevent impairing effects 

that can compromise workplace safety. 

This term is used interchangeably with 

an ‘‘alcohol- and drug-free workplace 

program’’ and ‘‘drug-free mine 

program.’’

Employee Assistance Program (EAP). 

A worksite-focused program designed to 

assist in the identification and 

resolution of problems associated with 

personal problems, such as alcohol and/ 

or drug abuse. 

Follow-up testing. A minimum of six 

unannounced tests performed in the 

first 12 months on any miner who 

returns to safety-sensitive job duties 

after violating the alcohol- and drug-free 

workplace policy. 

Initial drug test. The test used to 

differentiate a negative specimen from 

one that requires further testing for 

drugs or drug metabolites. 

Laboratory. A U.S. laboratory certified 

by the U.S. Department of Health and 

Human Services (HHS), Substance 

Abuse and Mental Health Services 

Administration (SAMHSA) as meeting 

the minimum standards of subpart C of 

the HHS Mandatory Guidelines for 

Federal Workplace Drug Testing 

Programs and which is also certified by 

the College of American Pathologists 

(CAP) to perform Forensic Urine Drug 

Testing (FUDT). 


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Medical Review Officer (MRO). A 

licensed physician who is responsible 

for receiving and reviewing laboratory 

results generated by a mine operator’s 

drug-testing program and evaluating 

medical explanations for certain drug 

test results. An MRO can be an 

employee of the mine operator or a 

service agent. 

Persons performing safety-sensitive 

job duties. Those who perform job 

activities that are inherently dangerous 

on a regular and/or recurring basis and 

are required under 30 CFR parts 46 and 

48 to take comprehensive miner 

training. Management and 

administrative personnel who supervise 

persons performing safety-sensitive job 

duties are also considered to perform 

safety-sensitive job duties. Therefore, 

throughout the rest of this part, the term 

‘‘miner’’ is used to include such 

supervisors. General administrative and 

clerical personnel are not considered to 

perform safety-sensitive job duties. 

Post-accident testing. Testing for the 

misuse of alcohol or drugs that is 

triggered either by an occupational 

injury or an accident that is done to 

help determine whether alcohol and/or 

drugs were a factor in the injury or 

accident. 

Pre-employment testing. For alcohol: 

Testing of applicants after a conditional 

offer of employment has been made but 

prior to the first performance of safetysensitive job duties. For drugs: Testing 

of applicants prior to the first 

performance of safety-sensitive job 

duties, irrespective of whether a 

conditional offer of employment has 

been made. 

Prohibited substances. Alcohol, and 

the following controlled substances, 

except when used according to a valid 

prescription: Amphetamines (including 

methamphetamines), barbiturates, 

benzodiazepines (e.g., Valium, Librium, 

Xanax), cannibinoids (marijuana/THC), 

cocaine, methadone, opiates (e.g., 

heroin, opium, codeine, morphine), 

phencyclidine (PCP), propoxyphene 

(e.g., Darvon), synthetic/semi-synthetic 

opioids (i.e., hydrocodone, 

hydromorphone, oxymorphone, 

oxycodone) and any other controlled 

substances designated by the Secretary. 

Random testing. Unannounced testing 

of miners assigned to safety-sensitive 

job duties for use of alcohol or drugs 

selected through a scientifically 

arbitrary process without regard to 

personal identifying information. 

Reasonable suspicion testing. Testing 

for alcohol or drugs conducted when a 

supervisor documents observable signs 

and symptoms that lead the supervisor 

to suspect alcohol or drug use in 

violation of the alcohol- and drug-free 

workplace policy. 

Return-to-duty testing. Testing 

performed on any miner before 

resuming safety-sensitive job duties 

after having failed to test negative for 

alcohol or drugs, or following admission 

of alcohol or drug use and after 

satisfactory completion of education 

and/or treatment prescribed by a 

Substance Abuse Professional (SAP). 

Safety-sensitive job duties. Any type 

of work activity where a momentary 

lapse of critical concentration could 

result in an accident, injury, or death. 

Service agent. Any person or entity 

possessing the required qualifications 

and/or certifications, other than an 

employee of the mine operator, who 

provides services specified under this 

part to mine operators in connection 

with MSHA alcohol- and drug-testing 

requirements, including but not limited 

to collectors, laboratories, MROs, 

Substance Abuse Professionals, or 

BATs. 

Split specimen. In drug-testing, a part 

of the urine specimen that is sent to the 

laboratory but not analyzed. Rather, it is 

retained unopened so that it can be sent 

to a second laboratory in the event that 

a miner requests that it be tested 

because he or she disputes the results 

reported by the first laboratory and 

verified by the MRO. 

Substance Abuse Professional (SAP). 

A specially trained and qualified person 

who evaluates miners who have 

violated a mine operator’s alcohol- and 

drug-free workplace policy and makes 

recommendations concerning 

education, treatment, follow-up testing, 

and aftercare. 

Substituted specimen. A specimen 

with creatinine and specific gravity 

values that are so diminished that they 

are not consistent with human urine. 

Verified test. A drug-test result or 

validity testing result from a laboratory 

that has undergone review and final 

determination by an MRO. 

Subpart B—Prohibitions 

§ 66.100 Prohibited substances. 

(a) Prohibited substances, except 

when conditions of paragraph (b) of this 

section are met, shall not be permitted 

or used on or around mine property. 

(b) Miners who possess or have used 

a prohibited substance will not be in 

violation of this part provided that an 

MRO has determined that the miner has 

a valid prescription for the substance 

and is using it as prescribed. 

§ 66.101 Prohibited behaviors. 

(a) Miners determined to have used a 

prohibited substance and/or to be under 

the influence of a prohibited substance 

as defined by § 66.3(p) shall not be 

allowed to perform safety-sensitive job 

duties. 

(b) Specifically, miners must not 

report for duty or remain on duty if 

they: 

(1) Are under the influence or 

impaired by alcohol as verifiable by a 

Blood Alcohol Concentration (BAC) of 

0.04 percent or greater; or 

(2) Have used a prohibited substance 

as verifiable by a positive drug test, 

unless an MRO has determined that the 

miner has a valid prescription for the 

prohibited substance and is using it as 

prescribed; or 

(3) Have refused to submit to a drug 

or alcohol test or have adulterated or 

substituted his/her specimen in any 

such test. 

Subpart C—Alcohol- and Drug-Free 

Mine Program Requirement 

§ 66.200 Purpose and scope. 

The mine operator shall establish a 

written alcohol- and drug-free mine 

program that includes a written policy, 

an education and awareness program for 

nonsupervisory miners, a training 

program for supervisors, alcohol- and 

drug-testing, and referrals for assistance 

for miners who violate this rule. 

§ 66.201 Written policy. 

(a) The alcohol- and drug-free mine 

program shall contain a written policy 

statement that shall be provided to all 

employees/miners and will inform them 

of the purpose of the policy; the 

prohibitions against the possession or 

use of prohibited substances; alcoholand drug-testing requirements; the 

consequences of policy violations; and 

training requirements. The policy will 

also reference these regulations and 

identify which miners are subject to the 

alcohol- and drug-testing provisions. 

(b) A mine operator must ensure that 

every miner has been informed of the 

policy. The proposed rule requires that 

a mine operator must provide a copy of 

the written policy to the miners’

representative or post the policy on a 

bulletin board in a common area in the 

event that the miners do not have a 

representative. Mine operators may also 

choose to distribute the policy during 

the alcohol- and drug-free awareness 

training sessions or distribute the policy 

in an electronic format; however, these 

additional means of distribution are not 

required. 

(c) Mine operators may use the 

sample model policy statement 

available from MSHA or from the Web 

site at http://www.msha.gov. 


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§ 66.202 Education and awareness 

program for nonsupervisory miners. 

(a) Mine operators are required to 

provide education and awareness 

programs for nonsupervisory miners 

that meet the following requirements: 

(1) Each newly hired miner must 

receive a minimum of 60 minutes of 

training before such miner is assigned to 

safety-sensitive job duties. The training 

must inform them of: 

(i) The mine’s alcohol- and drug-free 

mine policy, including alcohol- and 

drug-testing requirements; 

(ii) The dangers of alcohol and drug 

use and the impact of such use on safety 

in the mine; 

(iii) Actions to take when others are 

suspected of violating the policy; and 

(iv) Information about any available 

drug counseling, rehabilitation, and 

employee assistance programs (EAPs). 

(2) All nonsupervisory miners, on an 

annual basis, will receive a minimum of 

30 minutes of training to review the 

elements in paragraph (a)(1) of this 

section. 

(3) Training must be delivered by a 

competent person knowledgeable about 

workplace substance abuse, these 

regulatory requirements, and the mine 

operator’s policy. Mine operators may 

use the training materials available from 

MSHA or the Web site at http:// 

www.msha.gov. 

(b) Training may be supplemented by 

written informational materials, 

including a list of company or 

community resources that miners can 

contact for assistance. Videos or other 

audio-visual materials may be used to 

supplement interactive training but 

cannot serve as the sole means of 

training. 

(c) The training requirements in this 

part can be delivered as part of other 

new miner and annual nonsupervisory 

miner refresher training required under 

parts 46 and 48 of this chapter but must 

be delivered in addition to the other 

topics required and cannot displace 

other existing requirements of parts 46 

and 48 of this chapter. 

§ 66.203 Training program for supervisors. 

(a) A training program for supervisors 

is required and must meet the following 

requirements: 

(1) Every supervisor authorized by the 

mine operator to make reasonable 

suspicion and post-accident testing 

determinations shall receive an initial 

two hours of training and one hour 

annually, that, at a minimum: 

(i) Reviews the topics covered in the 

nonsupervisory miner training 

described in § 66.202 (a)(1)(i) through 

(iv); 

(ii) Makes them aware of their role in 

enforcing the alcohol- and drug-free 

workplace policy; 

(iii) Reviews the physical, behavioral, 

and performance indicators of probable 

drug use or alcohol misuse and prepares 

them to recognize and adequately 

document their observation of these 

signs of alcohol or drug impairment; 

(iv) Trains them to make reasonable 

suspicion determinations and what 

procedures to follow when such 

determinations are made; 

(v) Trains them to make post-accident 

determinations and what procedures to 

follow when such determinations are 

made; 

(vi) Trains them to make referrals to 

Substance Abuse Professionals or 

Employee Assistance Professionals and/ 

or to community resources if they 

suspect a miner has an alcohol or drug 

problem but there has not been a known 

violation of the policy and there is 

insufficient evidence to warrant a 

reasonable suspicion test; and 

(vii) Trains them on what constitutes 

safety-sensitive job duties so that they 

understand who is subject to drugtesting. 

(2) All supervisors, on a annual basis, 

will receive a minimum of 60 minutes 

of training to review the elements in 

paragraph (a)(1) of this section. 

(3) Training must be delivered by a 

competent person knowledgeable about 

workplace substance abuse, these 

regulatory requirements, and the mine 

operator’s policy. Mine operators may 

use the training materials available from 

MSHA or the Web site at http:// 

www.msha.gov. 

(b) Training may be supplemented by 

written informational materials, 

including a list of company or 

community resources that miners can 

contact for assistance. Videos or other 

audio-visual materials may be used to 

supplement interactive training but 

cannot serve as the sole means of 

training. 

§ 66.204 Miner assistance following 

admission of use of prohibited substances. 

(a) Mine operators shall make miners 

and other employees who admit to the 

illegitimate and/or inappropriate use of 

prohibited substances aware of available 

assistance through an employee or 

miner assistance program, a Substance 

Abuse Professional (SAP), and/or other 

qualified community-based resources. 

(b) Miners who voluntarily admit to 

the illegitimate and/or inappropriate use 

of prohibited substances prior to being 

testing and seek assistance shall not be 

considered as having violated the mine 

operator’s policy but shall be subject to 

the return-to-duty process specified in 

subpart E, §§ 66.405–406. However, a 

positive test result during the return-toduty process will be considered as a 

violation of the mine operator’s policy. 

Subpart D—Alcohol- and Drug-Testing 

Requirements 

§ 66.300 Purpose and scope. 

(a) Mine operators shall implement an 

alcohol- and drug-testing program that 

is valid, reliable, and protects the 

privacy and confidentiality of the 

individual to be tested. 

(b) Mine operators must follow the 

U.S. Department of Transportation’s 

(DOT) requirements found in 49 CFR 

part 40, Procedures for Transportation 

Workplace Drug Testing Programs, in 

which references to ‘‘DOT’’ shall be read 

as ‘‘MSHA’’ with the following 

exceptions: the split sample method of 

collection shall be used, and use of 

‘‘bifurcated’’ alcohol level for testing is 

excluded. 

(c) Mine operators are subject to all 

the requirements and procedures 

incorporated by part 66 and are 

responsible for the actions of their 

officials and representatives, and agents 

in carrying out these requirements. 

(d) Mine operators shall designate 

those who will be responsible for 

receiving test results and other 

communications from the MRO or BAT 

consistent with the requirements of this 

part. This designee will also be 

authorized by the mine operator to take 

immediate action(s) to remove miners 

from safety-sensitive job duties, or cause 

miners to be removed from these 

covered duties, and to make required 

decisions in the testing and evaluation 

processes. Mine operators cannot use 

contracted service agents to perform 

these functions. 

(e) A mine operator may use service 

agents to perform any of the other the 

functions required in this rule but may 

not designate or use a service agent to 

make drug-testing decisions or to 

receive alcohol-or drug-test results on 

behalf of the mine operator. 

(f) A mine operator that uses a service 

agent is responsible for ensuring that 

service agents meet all requirements and 

procedures set forth in DOT’s 

requirements found in 49 CFR part 40, 

except as modified by paragraph (b) of 

this section. Only laboratories certified 

by CAP as well as by HHS/SAMHSA 

shall be used to test collected samples. 

§ 66.301 Substances subject to mandatory 

testing. 

Tests will be conducted for the drugs 

listed below: 

(a) Alcohol, 

(b) Amphetamines (including 

methamphetamines), 


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(c) Barbiturates, 

(d) Benzodiazepines (e.g., Valium, 

Librium, Xanax), 

(e) Cannabinoids (THC/marijuana), 

(f) Cocaine, 

(g) Methadone, 

(h) Opiates (heroin, opium, codeine, 

morphine), 

(i) Phencyclidine (PCP), 

(j) Propoxyphene (e.g., Darvon), and 

(k) Synthetic/Semi-synthetic Opioids 

(oxymorphone, oxycodone, 

hydromorphone, hydrocodone). 

§ 66.302 Additional testing. 

The Secretary of Labor shall be 

permitted to designate additional 

substances for which all mine operators 

must test. 

§ 66.303 Circumstances under which 

testing will be required. 

Testing will be conducted in the 

following circumstances: Preemployment; randomly at unannounced 

times; post-accident if the miner may 

have contributed to the accident; based 

on reasonable suspicion that a miner 

has used a prohibited substance; and as 

part of a return-to-duty process for 

miners who have violated the rule. 

§ 66.304 Pre-employment testing. 

(a) Any applicant for a safety-sensitive 

position must be tested for the presence 

of drugs before performing safetysensitive job duties. 

(b) Any applicant for a safetysensitive position must receive an 

alcohol test after a conditional offer of 

employment has been made and before 

performing safety-sensitive job duties. 

(c) The mine operator must treat all 

miners performing safety-sensitive job 

duties the same for the purpose of preemployment alcohol- and drug-testing 

(i.e., mine operators must not test some 

miners and not others). If it is unclear 

whether an applicant will be assigned to 

such duties, it is at the mine operator’s 

discretion to test all applicants; or test 

only when it is known that the 

applicant will be assigned to perform 

safety-sensitive job duties. 

(d) The mine operator must not allow 

a miner to begin performing safetysensitive job duties if the result of the 

miner’s test indicates a blood alcohol 

concentration of more than 0.04 percent 

or if he/she has used a prohibited 

substance without a valid prescription. 

(e) Any incumbent miner who is to be 

transferred to a position involving the 

performance of safety-sensitive job 

duties must be tested for the presence of 

alcohol or drugs prior to beginning the 

performance of safety-sensitive job 

duties and must receive negative test 

results. 

(f) An incumbent miner that has failed 

or refused a pre-employment alcoholand drug-test administered under this 

part, shall not perform safety-sensitive 

job duties until that miner provides the 

mine operator proof of having 

successfully completed a referral, 

evaluation, and treatment plan, and 

tested negative on return-to-duty testing 

as described in subpart E, §§ 66.405–

66.406. 

(g) A mine operator shall have the 

discretion to conduct such testing on 

incumbent miners who are performing 

safety-sensitive job duties as of the 

effective date of this rule as long as all 

such miners are tested. 

§ 66.305 Random testing. 

Mine operators must randomly 

conduct unannounced alcohol and drug 

tests of their miners as described in 

paragraphs (a) through (e) of this 

section: 

(a) A mine operator shall use random 

testing rates for alcohol and drugs of 10 

percent. The random pool for 

unannounced alcohol and drug testing 

during each calendar year shall consist 

of miners who perform safety-sensitive 

job duties and their supervisors. 

(b) Miners who are on leave or 

otherwise absent from the workplace 

will be tested at the next available 

opportunity, that is, immediately upon 

their return to work. 

(c) Each mine operator shall ensure 

that random alcohol and drug tests 

conducted under this part are 

unannounced and unpredictable. The 

dates for administering random tests 

must be periodic and irregularly 

scheduled throughout the calendar year. 

The mine operator has the discretion to 

determine how frequently testing will 

occur but it must, at a minimum, meet 

the 10 percent floor established by this 

part. 

(d) The selection of miners for 

random alcohol and drug testing shall 

be made by a scientifically valid 

method, such as a random number table 

or a computer-based random number 

generator that is matched with miners’

payroll identification numbers, or other 

comparable unique identifying 

numbers. Under the selection process 

used, each miner shall have an equal 

chance of being tested each time 

selections are made. 

(e) Each mine operator shall ensure 

that any miner performing a safetysensitive duty at the time of the 

notification ceases to perform the safetysensitive duty and proceeds to the 

testing site immediately. 

§ 66.306 Post-accident testing. 

(a) A mine operator is required to 

conduct alcohol and drug testing of 

certain miners after certain accidents or 

workplace injuries occur. Accidents and 

injuries requiring post-accident testing 

include occupational injuries requiring 

medical treatment beyond first aid and 

accidents that occur while a miner is 

operating a piece of equipment or 

performing a work activity that causes 

or contributes to an accident, injury, or 

death. Nothing in this section shall be 

construed to require the delay of 

necessary medical attention for the 

injured following an accident or to 

prohibit a miner from leaving the scene 

of an accident for the period necessary 

to obtain assistance in responding to the 

accident or to obtain necessary 

emergency medical care. 

(1) Fatal accidents. As soon as is 

practicable following an accident 

involving the loss of human life, a mine 

operator shall conduct alcohol and drug 

tests on each surviving miner involved 

in any work activity that could have 

contributed to the accident, injury, or 

death as determined by the mine 

operator, using the best information 

available at the time of the decision. The 

mine operator shall also be authorized 

and required to have a toxicology test 

conducted on the deceased that at a 

minimum tests for all the substances 

listed in § 66.301. 

(2) Nonfatal accidents. As soon as is 

practicable following an accident or 

occupational injury not involving the 

loss of human life, the mine operator 

shall conduct alcohol and drug tests on 

each miner involved in any work 

activity that could have contributed to 

the accident or injury, as determined by 

the mine operator, using the best 

information available at the time of the 

decision. 

(b) A mine operator shall ensure that 

a miner required to be tested for alcohol 

under this section is tested as soon as 

is practical but within eight hours of the 

accident or injury. If an alcohol test is 

not administered within eight hours 

following the accident or injury, the 

mine operator shall cease attempts to 

conduct the test and prepare and 

maintain on file a record stating the 

reasons that the test was not promptly 

administered. 

(c) A mine operator shall ensure that 

a miner required to be drug tested under 

this section is tested as soon as is 

practical but within 32 hours of the 

accident or injury. If a drug test is not 

administered within 32 hours following 

the accident or injury, the mine operator 

shall cease attempts to conduct the test 

and prepare and maintain on file a 


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record stating the reasons that the test 

was not promptly administered. 

(d) A miner who is subject to postaccident testing who fails to remain 

readily available for such testing, 

including notifying the mine operator of 

his or her location if he or she leaves the 

scene of the accident prior to 

submission to such test, must be 

deemed by the employer to have refused 

to submit to testing. 

(e) The results of blood, urine, or 

breath tests for the use of prohibited 

substances conducted by federal, state, 

or local officials having independent 

authority for the test, shall be 

considered to meet the requirements of 

this section provided such tests conform 

to the applicable federal, state, or local 

testing requirements, and that the test 

results are obtained by the mine 

operator. Such test results may be used 

only when the tests have been 

performed within the applicable time 

limits (eight hours for alcohol and 32 

hours for drugs) and the mine operator 

has been unable to perform separate 

post-accident tests within those time 

periods. 

(f) Mine operators shall determine 

when post-accident testing will be 

ordered and which miners will be 

tested. Those making such 

determinations must have received the 

necessary training (as specified in 

subpart C) needed to make such 

determinations prior to doing so. 

(g) If MSHA investigators arrive at the 

scene of an accident within the 32-hour 

window and determine that miners not 

originally given a post-accident test may 

have contributed to the accident, the 

MSHA investigator can so order the 

mine operator to have such testing done 

at the mine operator’s expense. 

§ 66.307 Reasonable suspicion testing. 

(a) A mine operator shall conduct an 

alcohol and/or drug test when the mine 

operator has reasonable suspicion to 

believe that the miner has misused a 

prohibited substance. 

(b) A mine operator’s determination 

that reasonable suspicion exists shall be 

based on specific, contemporaneous, 

articulable observations concerning the 

appearance, behavior, speech, or body 

odors of the miner. A supervisor, or 

other company official who is trained in 

detecting the signs and symptoms of the 

misuse of alcohol and/or drugs, must 

make the required observations. 

(c) Testing is authorized under this 

section only if the observations required 

by paragraph (b) of this section are made 

during, immediately preceding, or just 

after the shift. A mine operator may 

direct a miner to undergo reasonable 

suspicion testing immediately before, 

during, or after the miner is to perform 

safety-sensitive job duties. 

(d) A mine operator shall ensure that 

a miner required to be tested for alcohol 

under this section is tested as soon as 

is practical but within eight hours of the 

mine operator’s determination that 

reasonable suspicion exists. If an 

alcohol test is not administered within 

eight hours, the mine operator shall 

cease attempts to conduct the test and 

prepare and maintain on file a record 

stating the reasons that the test was not 

promptly administered. 

(e) A mine operator shall ensure that 

a miner required to be tested for drugs 

under this section is tested as soon as 

is practical but within 32 hours of the 

mine operator’s determination that 

reasonable suspicion exists. If a drug 

test is not administered within 32 hours, 

the mine operator shall cease attempts 

to conduct the test and prepare and 

maintain on file a record stating the 

reasons that the test was not promptly 

administered. 

(f) Those authorized to make 

decisions on behalf of the mine operator 

as to when reasonable suspicion testing 

will be ordered and which miners will 

be tested will receive the necessary 

training needed to make such 

determinations prior to doing so as 

specified in subpart C. The mine 

operator will determine who is 

authorized to make these decisions. 

(g) If the collection site is not on the 

mine property, miners being tested 

because of reasonable suspicion should 

not be allowed to drive themselves to 

the site, but rather shall be accompanied 

by authorized mine personnel. 

Subpart E—Operator Responsibilities, 

Actions, and Consequences 

§ 66.400 Consequences to miner for failing 

an alcohol or drug test or refusal to test. 

(a) A mine operator, upon a miner’s 

verified positive drug test result, an 

alcohol test with a result indicating a 

blood alcohol concentration of 0.04 

percent or greater, a refusal to test 

(including by adulterating or 

substituting a urine specimen), or any 

other violation of the mine operator’s 

policy prohibiting possession, 

impairment from or use of alcohol or 

drugs must not return the miner to the 

performance of safety-sensitive job 

duties until or unless the miner 

successfully completes the return-toduty process of §§ 66.405 and 66.406 of 

this part. The miner may be assigned to 

duties that are not safety-sensitive at the 

mine operator’s discretion. 

(b) Mine operators shall not terminate 

miners who violate the mine operator’s 

policy for the first time (e.g., by testing 

positive for alcohol or drugs). Rather, 

those miners testing positive for the first 

time, who have not committed some 

other separate terminable offense, shall 

be provided job security while the 

miner seeks appropriate evaluation and 

treatment. The miner will be able to be 

reinstated and allowed to resume 

performance of safety-sensitive job 

duties provided the miner complies 

with return-to-duty requirements 

outlined in §§ 66.405 and 66.406. 

(c) For subsequent violations of the 

mine operator’s alcohol- and drug-free 

mine policy, the mine operator shall 

specify appropriate disciplinary steps, 

up to and including termination. At a 

minimum, miners shall not be allowed 

to perform safety-sensitive job duties 

until such time that they have 

satisfactorily complied with the returnto-duty process as specified in §§ 66.405 

and 66.406 of this rule. 

§ 66.401 Operator actions pending receipt 

of test results. 

(a) Miners who have been selected for 

random testing shall be returned to duty 

immediately following the test and 

while awaiting the results. 

(b) Miners who have been tested for 

alcohol and/or drugs based on 

reasonable suspicion or because the 

mine operator has determined that they 

may have contributed to an accident 

may be suspended from performance of 

safety-sensitive job duties until the 

verified test results have been received. 

(c) All miners suspended from 

performing safety-sensitive job duties 

pending results should be treated in the 

same manner with respect to this rule 

and no action adversely affecting the 

miner’s pay and benefits shall be taken 

pending the verified outcome of the 

testing process. 

(d) In the event that a miner does not 

work at all during the suspension period 

(i.e., the miner is not assigned nonsafety-sensitive job duties) and the test 

result is verified positive, mine 

operators may choose to withhold pay 

for the suspension period in accordance 

with mine operator policy and/or any 

existing labor-management agreement. 

§ 66.402 Substantiating legitimate use of 

otherwise prohibited substances. 

Although mine operators shall not 

receive test results until after an MRO 

has verified them, mine operators must 

ensure miners have adequate 

opportunity to demonstrate that their 

use of prescription drugs is legitimately 

authorized. However, possession of a 

valid prescription from a medical 

professional in and of itself may not 

constitute sufficient proof of legitimate 

and appropriate use. It is the 


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52162 Federal Register / Vol. 73, No. 174 / Monday, September 8, 2008 / Proposed Rules 

responsibility of the MRO to make this 

determination. If the miner asserts that 

the presence of a drug or drug 

metabolite in his/her specimen results 

from taking prescription medication, the 

MRO must review and take all 

reasonable and necessary steps to verify 

the authenticity of all medical records 

the miner provides. The MRO may 

contact the miner’s physician or other 

relevant medical personnel and/or 

direct the miner to undergo further 

medical evaluation. 

§ 66.403 Operator actions after receiving 

verified test results. 

(a) A mine operator who receives a 

verified positive drug test result or a 

verified adulterated or substituted drug 

test result must immediately remove the 

miner involved from performing safetysensitive job duties and refer the miner 

to a qualified SAP. Action must be taken 

upon receiving the initial report of the 

verified test result. A mine operator 

must not wait to receive the written 

report or the result of a split specimen 

test. 

(b) A mine operator who receives a 

blood alcohol concentration test result 

of 0.04 percent or higher must 

immediately remove the miner involved 

from performing safety-sensitive job 

duties and refer the miner to a qualified 

SAP. A mine operator must not wait to 

receive the written report of the result 

of the test. 

(c) A mine operator must not alter an 

alcohol or drug test result transmitted 

by a MRO or BAT. 

(d) In the event that the MRO verifies 

that a test is negative or cancels the test: 

(1) The miner will be immediately 

returned to the performance of safetysensitive job duties if he/she has been 

removed based on reasonable suspicion; 

(2) The miner will suffer no adverse 

personnel consequences or loss in pay; 

and 

(3) No individually identifiable record 

that the employee had a confirmed 

laboratory positive, adulterated, or 

substituted test result will be retained. 

The record of the test will reflect that it 

was a negative test. 

§ 66.404 Evaluation and referral. 

(a) A miner who has failed a test for 

prohibited substances or refused or 

adulterated a test cannot perform safetysensitive job duties until a SAP 

evaluation has been completed and the 

miner successfully complies with the 

SAP’s recommendations for education 

and/or treatment. 

(b) Mine operators must provide to 

each such miner (including an applicant 

or new miner) a listing of SAPs 

available to the miner and acceptable to 

the mine operator. This listing should 

include the names, addresses, and 

telephone numbers of the available 

SAPs. The miner may avail himself or 

herself of the services of the SAP to 

receive an evaluation and referral for 

treatment. The miner shall be allowed to 

return to performance of safety-sensitive 

job duties following a first-violation 

violation and provided the miner 

complies with the return-to-duty and 

follow-up testing provisions found in 

§§ 66.405 and 66.406. 

(c) The SAP’s recommendation for 

assistance will serve as a referral source 

to assist the miner’s entry into an 

education and/or treatment program. 

(d) Miners who have failed or refused 

an alcohol or drug test may not seek a 

second SAP’s evaluation in order to 

obtain a different recommendation, nor 

may a mine operator do so if the miner 

has already been evaluated by a 

qualified SAP. If the miner, contrary to 

this paragraph, has obtained a second 

SAP evaluation, mine operators may not 

rely on it for any purpose under this 

part. Only the SAP who made the initial 

evaluation may modify his or her initial 

evaluation and recommendations based 

on new or additional information (e.g., 

from an education or treatment 

program). 

(e) While the SAP’s referral shall 

always be made at the miner’s first 

offense, employers may choose to offer 

additional opportunities for treatment 

and return-to-work, but must do so in a 

way that is uniform and consistent. 

§ 66.405 Return-to-duty process. 

(a) After miners testing positive for 

alcohol or drugs are assessed by a SAP 

and follow that SAP’s educational or 

treatment recommendations, they may 

return to safety-sensitive job duties 

upon submitting to return-to-duty and 

follow-up testing as described in 

§§ 66.406. 

(b) SAPs must re-evaluate the miner 

to determine if the miner has 

successfully carried out the 

recommended education and/or 

treatment so that the mine operator can 

decide whether to return the miner to 

safety-sensitive job duties. 

(c) Should a SAP provide written 

notice that the miner has not 

successfully complied with the SAP’s 

recommendations, the mine operator 

must not return the miner to the 

performance of safety-sensitive job 

duties and may take action consistent 

with company policy and/or labormanagement agreements. 

(d) Although the SAP can verify 

completion of or compliance with 

recommended treatment, it is the mine 

operator who decides whether to put the 

miner back to work in a safety-sensitive 

position. However a miner who has 

successfully completed the 

recommended treatment and passed the 

return-to-duty tests may not be 

discharged for his/her first offense. 

§ 66.406 Return-to-duty and follow-up 

testing. 

(a) Miners must have an alcohol test 

with a blood alcohol concentration of 

less than 0.04 percent and a negative 

return-to-duty drug-test result before 

resuming performance of safetysensitive job duties. 

(b) A mine operator shall conduct 

follow-up testing of each miner who 

returns to duty, as follows: 

(1) A SAP is the sole determiner of the 

number and frequency of follow-up tests 

needed for a particular miner and 

whether these tests will be for alcohol, 

drugs, or both. If the miner had a 

positive drug test, but the SAP 

evaluation or the treatment program 

professional determines that the miner 

also has an alcohol problem, a SAP shall 

require that the miner have follow-up 

tests for both alcohol and drugs. 

(2) A SAP must establish a written 

follow-up testing plan for each miner 

who has committed a violation of this 

rule, and who seeks to resume the 

performance of safety-sensitive job 

duties only after the miner has 

successfully complied with 

recommendations for education and/or 

treatment. 

(3) At a minimum, a miner will be 

subject to six unannounced follow-up 

tests in the first 12 months of resuming 

safety-sensitive job duties. It is possible, 

however, that the SAP may require more 

than six unannounced follow-up tests, 

and that the testing be continued for up 

to 24 months after the miner resumed 

his/her safety-sensitive job duties. 

(4) The mine operator may not impose 

additional testing requirements (e.g., 

under company authority) on the miner 

that go beyond the SAP’s follow-up 

testing plan. 

(5) The mine operator must carry out 

the SAP’s follow-up testing 

requirements and may not allow the 

miner to continue to perform safetysensitive job duties unless follow-up 

testing is conducted as directed by the 

SAP. Mine operators failing to do so 

will be in violation of this rule. 

(6) Mine operators have discretion in 

scheduling follow-up tests but must 

ensure that the tests are unannounced 

with no discernable pattern as to their 

timing, and that the miner is given no 

advance notice. 

(7) Other tests conducted (e.g., those 

carried out under the random testing 


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Federal Register / Vol. 73, No. 174 / Monday, September 8, 2008 / Proposed Rules 52163 

program) cannot substitute for this 

follow-up testing requirement. 

Subpart F—Recordkeeping and 

Reporting 

§ 66.500 Recordkeeping requirements. 

(a) Protection of employee records. 

(1) Records of drug- or alcohol-test 

results received are confidential 

communications between the mine 

operator and the miner. 

(2) If records are stored electronically, 

a mine operator must ensure that the 

records are secured. 

(b) Mine operators must keep and 

retain the following test records for at 

least three years: 

(1) The number of workers in safetysensitive positions; 

(2) The total number tested; 

(3) The number of positive alcohol 

and drug tests for each substance; and 

(4) A record of which miners were 

tested, the dates of their tests, their test 

results, and return-to-duty and followup test results; these records should be 

retained separately from aggregate data 

on violations and violation rates. 

(c) In addition, mine operators are 

required to: 

(1) Include post-accident test results 

in accident reports regardless of 

whether the test(s) are positive or 

negative. 

(2) Annually compute and retain 

records of the percentage of positive 

random alcohol and drug tests. 

(d) MSHA inspections: 

(1) Mine operators’ alcohol- and drugfree workplace policies and program 

descriptions should be made available 

to MSHA inspectors upon their request; 

however, this rule does not require 

routine review of alcohol- and drug-free 

workplace programs by MSHA 

inspectors. 

(2) Any and all alcohol- or drug-test 

results will be made available upon 

request of MSHA inspectors or 

investigators and will be used in 

assessing overall compliance with safety 

regulations as well as in determining the 

cause of accidents. 

[FR Doc. E8–20561 Filed 9–5–08; 8:45 am] 

BILLING CODE 4510–43–P 


jlentini on PROD1PC65 with PROPOSALS5