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DEPARTMENT OF LABOR

U.S. Customs and Border Protection

CFR Citation: 30 CFR Parts 56, 57, and 66

DOCUMENT ID: [1219-AB41]

NOTICE: Part V

DOCUMENT ACTION: Proposed rule.

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

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

DOCUMENT 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 safetysensitive job duties, except when used according to a valid prescription. Mine operators would be required to establish an alcohol and drugfree mine program, which includes 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 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 drugfree status is confirmed by a returntoduty test.

SUMMARY: Labor Department, Mine Safety and Health Administration,

SUPPLEMENTAL 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. SectionbySection 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 nonfatal mine accident records revealed a number of instances in which alcohol or drugs or drug paraphernalia were found or reported, or where the postaccident toxicology screen revealed the presence of alcohol or drugs.

The U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration's (SAMHSA) 2006 National Survey on Drug Use and Health \1\ reports that in 2006, of the 17.9 million illicit drug \2\ users age 18 and
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over, 13.4 million (74.9 percent) were employed.\3\ Similarly, among 54 million adult binge drinkers, 42.9 million (79.4 percent) were employed, and among 16.3 million persons reporting heavy alcohol use, 12.9 million (79.2 percent) were employed.\4\ Also, in 2006, of the 20.6 million adults classified with substance dependence or abuse, 12.7 million (61.5 percent) were employed fulltime.\5\ Furthermore, among the U.S. working age population (ages 1864) diagnosed with a substance use disorder, 62.7 percent were employed fulltime.\6\
\1\ The 2006 National Survey on Drug Use and Health (NSDUH) is the annual survey and primary source of information on the use of illicit drugs, alcohol, and tobacco in the civilian, non
institutionalized population of the United States aged 12 years or older.
\2\ The survey defined current illicit drug use as the non medical use of marijuana/hashish, cocaine (including crack), heroin, hallucinogens, inhalants or prescriptiontype drugs. Nonmedical use is defined as the use of prescriptiontype drugs not prescribed for the respondent by a physician or used only for the experience or feeling they caused. Nonmedical use of any prescriptiontype pain reliever, sedative, stimulant, or tranquilizer does not include overthe counter drugs. Nonmedical use of stimulants includes methamphetamine use.
\3\ Substance Abuse and Mental Health Services Administration (2007). Results from the 2006 National Survey on Drug Use and Health: National Findings (Office of Applied Studies, NSDUH Series H32, DHHS Publication No. SMA 074293). Rockville, MD.
\4\ Ibid.
\5\ Ibid.

\6\ Ibid.

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\
\7\ Weber, W., and Cox, C. ``WorkRelated Fatal Injuries in 1998,'' Compensation and Working Conditions, Spring 2001, pp. 2729. \8\ Ibid.

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 fulltime workers aged 1864 in the construction, trade, and excavation occupational group.\10\ The data also show that in the mining \11\ industry, 13.3 percent of fulltime 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 offduty hours. \9\ Substance Abuse and Mental Health Services Administration (2007). The Worker Substance Use and Workplace Policies and Programs Report presents findings on substance abuse among workers and on workplace drug policy and programs from the 2002, 2003, and 2004 National Surveys on Drug Use and Health. (Office of Applied Studies, Analytic Series: A29.)
\10\ The Standard Occupation System categorizes occupations into 21 groups. The Construction Trades and Extraction Workers group includes mining.
\11\ The NAICS, which replaced the Standard Industry
Classification (SIC), categorizes all industries into 19 major groups and is used to classify industries in the Report.

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 nonfatal 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 preemployment 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\ \12\ This summit was hosted by the states of Kentucky, Virginia and West Virginia and by the U.S. Department of Labor, Mine Safety and Health Administration.

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 safetysensitive 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.

\13\ Public Law 91173, as amended by Public Law 95164.

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 AntiDrug Abuse Act of 1986 (Pub. L. 99570), directed the Secretary of Labor to initiate efforts to address the issue. Subsequently in 1986, Executive Order 12564, DrugFree Federal Workplace, established federal drugfree workplaces by making it a condition of employment for all federal employees to refrain from using illegal drugs. The DrugFree Workplace Act of 1988, 41 U.S.C. 701, et seq., required federal contractors and grantees to have drug free workplaces, and the DrugFree 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 drugtesting for employees in ``safetysensitive'' positions, creating a model that many nonregulated employers now follow.\14\
\14\ The U.S. Department of Transportation's drugtesting regulations (49 CFR part 40) and several modespecific regulations were published in 1988 and were initially based on the agency's general safety responsibilities rather than as a response to specific statutory authorization.

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MSHA has addressed the issue of alcohol and drug misuse since the 1990s. In recent years MSHA, in close collaboration with the Department of Labor's (DOL) Working Partners program,\15\ has taken the lead and initiated a number of education and outreach efforts to raise awareness in the mining industry of the safety hazards stemming from the use of alcohol and drugs. MSHA and the Joseph A. Holmes Safety Association partnered and established the Professional Miner Program to recognize miners who have worked injuryfree 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 drugfree workplace.'' To date, approximately 24,252 miners (roughly six percent of the mining workforce) have taken this pledge. \15\ The Department of Labor's Working Partners program is an education and outreach initiative that equips employers and unions with information and tools to effectively address workplace alcohol and drug problems.

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 drugfree workplace programs and protect employee health and safety.

Since 2006, MSHA has encouraged mine operators and miners to participate in the National DrugFree 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 industrywide 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 oneday 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 drugfree 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 drugtesting 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 drugfree mine programs are; and what the costs/benefits of requiring and/or implementing drugfree mine programs would be.
\16\ The public information gathering meetings were held in Salt Lake City, Utah; St. Louis, Missouri; Birmingham, Alabama; Lexington, Kentucky; Charleston, West Virginia; Pittsburgh, Pennsylvania; and Arlington, Virginia.

Although many of those commenting through oral or written statements agreed that there is a need for MSHA to take action to address substance abuse in the mines, most reports were anecdotal and data were not provided to specifically quantify the extent of the problem in the U.S. mining industry.

Since the ANPRM was published in 2005, two states have passed drug testing laws (Kentucky in July 2006 and Virginia in April 2007) that require miners to submit to drugtesting 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\ \17\ Although there are a variety of specialty certifications that miners are required to get in order to perform certain mining functions, only a handful of states (Kentucky, Virginia, West Virginia, Pennsylvania, Oklahoma, and Colorado) require a general miner certification in order to be employed as a miner.

The 2006 Kentucky law requires that all applicants for mining certifications pass alcohol and drugtests 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 drugtesting 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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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 drugtesting law was enacted, a total of 11,930 pre certification tests have been conducted. The number of positive pre certification tests is not known because of how Kentucky tracks the data. Since the law's inception, there have been 459 reported violations of the industry's drugfree 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 preemployment, 11drug 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 preemployment 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 inspectorordered 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. Twentynine 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 hardhit 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 allindustry average. Similarly, nearly threequarters of those working in the mine industry report random testing, which is more than double the reported allindustry average (of nearly 30 percent). These data suggest that alcohol and drug use by miners is a significant enough threat to safety to compel mine operators to voluntarily choose to conduct alcohol and drugtesting.\21\
\18\ Number and Rate of Fatal Occupational Injuries, by Industry Sector, 2006U.S. Bureau of Labor Statistics, U.S. Department of Labor.
\19\ Ibid.
\20\ U.S. Department of Labor, Bureau of Labor Statistics, Census of Fatal Occupational Injuries, 2006.
\21\ Data are extracted from online tables from the SAMHSA 2002, 2003, and 2004 National Surveys on Drug Use and Health.

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 frontpage article discussing drugs and drug addiction in the mines of western Virginia was published in The Washington Post in January 2008 and republished throughout various regional papers. Several articles suggest that miners misuse drugs (mainly prescription painkillers) after becoming addicted to them during treatment for chronic work related pain and injuries.
\22\ The 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.

Some articles also mention fatalities and serious injuries in three separate mining accidents where drugs were discovered onsite 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 drugfree 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 coworkers and equipment at risk.'' Another commenter, Graymont Western US, Inc., noted that ``the severity of the risk imposed by a miner impaired due to alcohol or substance abuse cannot be overstated'' and ``the potential hazards associated with mining are known and well documented.'' Thus, ``permitting an impaired individual to work in an [[Page 52140]]
environment where, for example, methane gas is liberated or on or around machinery capable of causing bodily harm cannot be tolerated.'' The International Coal Group (ICG) ``believe[s] that the abuse of a controlled substance creates a very serious risk to the health and safety of all miners.'' ICG further states that ``the individual places themselves and others around them in a dangerous situation [and] [a]llowing an individual to work in an environment under the influence of a control[led] substance could affect the safe operation of machinery and the sound judgment needed to make critical decisions in performing all work task[s] in a safe manner.''

A former Nevada underground miner suggested that the work shifts, travel time to and from work, lack of sleep, and chronic pain contribute to the abuse of alcohol and drugs by miners. Another commenter specifically stated that alcohol and drug abuse exists and that ``mining companies must deal with the amount of alcohol and drug abuse, the types of illicit drugs abused, and the fact that the amount and types of prescription drugs abused varies greatly by location and time.''

The drugs of concern specifically mentioned by commenters include alcohol, marijuana, cocaine, opiates, methamphetamines, and prescription painkillers (notably methadone and oxycodone). Concern was expressed not only about the nonmedical 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 yearold 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 rootcause 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 decisionmaking on how to respond.

An alcohol and drugfree 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 postaccident 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 drugfree workplace programs to improve safety in the mine. Although numerous commenters expressed the belief that drugfree mine programs that include drugtesting 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 drugfree mine programs that require drugtesting and have passed antidrug 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 drugfree 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 drugfree 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 drugfree 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 safetysensitive job duties (i.e., activities where a lapse of critical concentration could result in an accident, serious injury, or death) is prohibited.

Alcohol and drugtesting 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 fitnessforduty requirements or drugfree workplace programs that include a variety of testing requirements, such as preemployment, random, postaccident, and reasonable suspicion testing. The U.S. Department of Transportation (DOT) requires alcohol and drugtesting of over 12 million workers performing designated safetysensitive 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 drugtesting 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 drugtesting 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 safetysensitive positions) to have drugfree workplace programs which include both alcohol and drugtesting. Similarly, many of the jobs in mines are safetysensitive 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 drugtesting 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, postaccident, and reasonable suspicion). Similarly, the proposed rule requires removal from the performance of safetysensitive job duties and follows the same process of referring miners who test positive to Substance Abuse Professionals (SAP) and requiring return toduty 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. SectionbySection 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 drugtesting of miners who perform safetysensitive 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 drugtesting 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 returntoduty 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 safetysensitive job duties until the miner completes the recommended treatment and their alcohol and drugfree status is confirmed by a returntoduty 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 drugtesting and returntoduty 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 drugfree 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 drugfree 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 drugtesting technologies are being used. However, mine operators with preexisting drugfree 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 safety sensitive job duties to a position that does require the performance of such duties. The proposed rule would require its training requirements for supervisors and miners to be met within 30 days of implementation of the mine's drugfree workplace program.

The decision to allow a phasein 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 drugfree mine and drugtesting 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 AGeneral

Section 66.1 Purpose

This rule is intended to protect mining's most precious resource the minerby 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 safetysensitive 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 drugtesting 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 safetysensitive job duties, even if for a brief amount of time, or whether the rule should apply only to those who regularly or routinely perform safetysensitive job duties. To be consistent with other safety requirements, MSHA proposes that the alcohol and drugtesting 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 safetysensitive 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 BProhibitions

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 safetysensitive 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 drugfree 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 ``SAMHSA5''):

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 semisynthetic 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 highhazard environment.

The ANPRM asked for information, evidencebased 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 secondranking drug threat in terms of prevalence, with 7.0 million (2.8 percent) persons aged 12 or older using prescription type psychotherapeutic drugs nonmedically in the past month. Of these, 5.2 million used pain relievers, an increase from 4.7 million in 2005. Furthermore, past month nonmedical 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, nonmedical use of tranquilizers also increased over the five year period (from 1.6 to 2.0 percent). Furthermore, data from Quest Diagnostics' Drug Testing Index[reg] indicate that positive workplace drug results for amphetaminesstimulants that can include prescription drugs or diet aidsincreased 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 37yearold male with a history of drug abuse and treatment for pain or chronic illness, with nearly onefourth 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 cutoff 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 cutoff 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 safetysensitive 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 CDrugFree Mine Program Requirement

Section 66.200 Purpose and Scope

The proposed rule would require each mine operator to implement the following five elements of an alcohol and drugfree program: A written policy, employee education, supervisory training, alcohol and drug testing for miners that perform safetysensitive job duties and their supervisors, and referrals to assistance for miners who violate the policy. A sample model alcohol and drugfree 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 drugfree 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 nonfatal 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 drugfree mine program that would be required by the proposed rule reflect the wellestablished ``fivestep'' model the federal government has used for its own drugfree 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 drugfree 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.

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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 drugfree 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 ti

FOR FURTHER INFORMATION CONTACT Elena Carr at carr.elena@dol.gov (E- mail), 2026935959 (Voice).