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57808 Federal Register / Vol. 70, No.

191 / Tuesday, October 4, 2005 / Proposed Rules

corrected to read ‘‘communications DATES: Comments to this advance notice • We maintain a listserve on our Web
income. The source of income’’. of proposed rulemaking must be site that enables subscribers to receive e-
received by November 27, 2005. mail notification when we publish
Cynthia Grigsby, We will hold seven public meetings to rulemaking documents in the Federal
Acting Chief, Publications and Regulations gather additional information. The dates Register. To subscribe to the listserve,
Branch, Legal Processing Division, Associate and locations are listed in the Public
Chief Counsel (Procedure and
visit our site at http://www.msha.gov/
Administration).
Meetings section under SUPPLEMENTARY subscriptions/subscribe.aspx.
INFORMATION. Individuals or
[FR Doc. 05–19779 Filed 10–3–05; 8:45 am] FOR FURTHER INFORMATION CONTACT:
organizations wishing to make
BILLING CODE 4830–01–P
presentations for the record are asked to Rebecca J. Smith, Acting Director, Office
submit a request to us at least five days of Standards, Regulations, and
prior to the meeting date; however, Variances at 202–693–9440 (voice),
those who do not submit a request in 202–693–9441 (fax), or
DEPARTMENT OF LABOR smith.rebecca@dol.gov (e-mail).
advance will be given an opportunity to
Mine Safety and Health Administration speak. Outline of ANPRM
ADDRESSES: Comments must include
30 CFR Parts 46, 48, 50, 56, 57, 75, and Regulation Identifier Number (RIN) This outline will assist you in finding
77 1219–AB41 and may be submitted by information in the SUPPLEMENTARY
any of the following methods: INFORMATION section of this document.
RIN 1219–AB41 • Federal eRulemaking Portal: http://
www.regulations.gov. Follow the Supplementary Information
Use of or Impairment From Alcohol instructions for submitting comments. I. Public Meetings
and Other Drugs on Mine Property • E-mail to zzMSHA- II. Introduction
comments@dol.gov. Include RIN 1219– III. Background
AGENCY: Mine Safety and Health AB41 in the subject line of the message. IV. Issues
Administration (MSHA), Labor. • Fax: (202) 693–9441. A. Nature, Extent, and Impact of the
ACTION: Advance notice of proposed • Regular Mail or Hand Delivery: Problem
MSHA, Office of Standards, B. Prohibited Substances and Impaired
rulemaking; notice of public meetings; Miners
close of record. Regulations, and Variances, 1100 C. Training
Wilson Blvd., Room 2350, Arlington, D. Inquiries Following Accidents
SUMMARY: Because of the inherent Virginia 22209–3939. E. Drug-Free Workplace Programs
dangers present in all mining • Access to Docket: We post all F. Costs and Benefits
environments, we are considering comments received without change,
regulatory and non-regulatory including any personal information SUPPLEMENTARY INFORMATION:
approaches to address the risks and provided, at http://www.msha.gov under I. Public Meetings
hazards to miner safety from the use of the ‘‘Rules & Regs’’ link. The public
or impairment from alcohol and other docket may be viewed at our Office of The public meetings will begin at 9
drugs, and are soliciting information Standards, Regulations, and Variances, a.m. and end after the last speaker
from the public to help determine how 1100 Wilson Blvd., Room 2349, testifies (in any event not later than 5
to proceed. Arlington, Virginia. p.m.) on the following dates:

Date Location Phone

October 24, 2005 ........... Little America Hotel, 500 S Main Street, Salt Lake City, UT 84101 .................................................... 801–363–6781
October 26, 2005 ........... Hyatt Regency St. Louis, 1 St. Louis Union Station, St. Louis, MO 63103 ........................................ 800–233–1234
October 28, 2005 ........... Sheraton Birmingham, 2101 Richard Arrington Jr. Blvd. North, Birmingham, AL 35203 .................... 205–324–5000
October 31, 2005 ........... Sheraton Suites Lexington, 2601 Richmond Rd., Lexington, KY 40506 ............................................. 859–268–0060
November 2, 2005 ......... Marriott Town Center, 200 Lee St. East, Charleston, WV 25301 ....................................................... 304–345–6500
November 4, 2005 ......... Hyatt Regency Pittsburgh Int’l Airport, 1111 Airport Blvd., Pittsburgh, PA 15231 .............................. 800 233–1234
November 8, 2005 ......... MSHA Conference Room 25th Floor, 1100 Wilson Blvd., Arlington, VA 22209 ................................. 202 693–9440

The meetings will begin with an The meetings will be conducted in an II. Introduction
opening statement from us, followed by informal manner. We may ask questions
an opportunity for members of the of you. Although formal rules of Given that our accident investigations
public to make oral presentations to our evidence or cross examination will not do not routinely include an inquiry into
panel. You do not have to make a apply, we may exercise discretion to the use of alcohol or other drugs as a
written request to speak. You will speak ensure the orderly progress of the contributing factor, there may be many
in the order that you sign in. Any meeting and may exclude irrelevant or instances in which alcohol or other
unallotted time will be made available unduly repetitious material and drugs were involved in accidents and
for persons making same-day requests. questions. are not reported to us or that we do not
At the discretion of our presiding uncover during investigations. Our
A verbatim transcript of the meetings preliminary review of our fatal and non-
official, the time allocated to speakers will be included in the rulemaking
for your presentation may be limited. fatal mine accident records revealed a
record. Copies of this transcript will be number of instances in which alcohol or
We will accept written comments and available to the public, and can be
data for the record from any interested other drugs or drug paraphernalia were
accessed at http://www.msha.gov. found or reported, or in which the post-
party, including those not presenting
oral statements. The comment period accident toxicology screen revealed the
will close on November 27, 2005. presence of alcohol or other drugs.

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Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Proposed Rules 57809

We are concerned that miners’ use of needs to be alert, aware, and capable of as those involving safety-sensitive
and impairment from alcohol and other performing complicated tasks. Even duties like operating machinery.4 Over
drugs can create considerable (but prescription medications may affect a the past year and a half, OSHA has
preventable) risks to miner safety. To miner’s perceptions and reaction time. implemented a number of strategies in
the extent that use and abuse of alcohol Mining is a complicated and hazardous support of this statement. For example,
and other drugs by miners is prevalent, occupation, and a clear focus on the OSHA along with MSHA and DOL’s
it reflects problems in the community in work at hand is a crucial component of Working Partners program, formed an
general and the labor force as a whole. workplace safety. Alcohol- or drug- alliance with four international labor
The Department of Health and Human impaired miners endanger themselves unions 5 focused exclusively on
Services, Substance Abuse and Mental as well as their co-workers. improving worker health and safety
Health Services Administration’s A number of mine operators recognize through drug-free workplace programs,
(SAMHSA) 2003 National Survey on this problem, and require applicants for and an OSHA/National Federation of
Drug Use and Health (formerly the employment to pass a pre-employment Independent Business alliance
National Household Survey on Drug drug screening. At a summit held on agreement specifically includes
Abuse) shows that these community December 18, 2004, some mine promoting drug-free workplaces as a
problems are also found in the labor operators stated that a substantial goal. OSHA also developed a Web page
force. The survey reports that of 16.7 number of job applicants are unable to on workplace substance abuse, and
million illicit drug users age 18 or older, pass the initial drug screen. OSHA and DOL staff have presented at
12.4 million (74.3 percent) were conferences and written articles for
III. Background
employed either full or part time. In publications attracting occupational
addition, 14.9 million (77 percent) of Since the late 1980s, the federal safety and health professionals.
the 19.4 million adults, age 18 or older, government has implemented a number We currently address the presence
characterized with abuse of or of programs aimed at reducing the use and use of intoxicating beverages and
dependence on alcohol or drugs were of alcohol and other drugs in the narcotics at metal and nonmetal mines.
employed. The Bureau of Labor workplace. The Anti-Drug Abuse Act of Sections 56.20001 and 57.20001 of 30
Statistics analyzed 1998 data from its 1986 (Pub. L. 99–570), among other CFR state:
Census of Fatal Occupational Injuries things, directed the Secretary of Labor to
initiate efforts to address the issue. Intoxicating beverages and narcotics shall
and estimated that 19 percent of the not be permitted or used in or around mines.
nation’s workforce who die on the job Subsequently, Executive Order 12564, Persons under the influence of alcohol or
test positive for alcohol and other Drug-Free Federal Workplace, narcotics shall not be permitted on the job.
drugs.1 Similarly, a 1993 analysis of established federal drug-free
workplaces, making it a condition of Between January 1, 2000 and June 30,
toxicology data on injured workers’
employment for all federal employees to 2005, penalties were assessed for 75
blood alcohol concentration estimated
refrain from using illegal drugs. The violations of § 56.20001 and for three
that ten percent of fatal work injuries
Drug-Free Workplace Act of 1988, 41 violations of § 57.20001. Our regulations
and five percent of non-fatal work
U.S.C. 701, et seq., requires Federal contain no similar requirement for coal
injuries overall involved acute alcohol
contractors and grantees to have drug- mines.
impairment.2
free workplaces, and the Drug-Free We have initiated a number of
SAMHSA’s 2000 National Household
Workplace Act of 1998, 15 U.S.C. 654, education and outreach efforts to raise
Survey on Drug Abuse analyzes alcohol
and other drug use and abuse by established grant programs that assist awareness in the mining industry of the
industry sector. Notably, the small businesses in developing drug- safety hazards stemming from the use of
construction and mining industries have free workplace programs. To protect alcohol and other drugs. We, in
the highest percentage of workers who public safety, the Omnibus partnership with the Joseph A. Holmes
reported current illicit drug use 3 or Transportation Employee Testing Act of Safety Association, established the
have an alcohol dependence disorder or 1991, Public Law 102–143, requires Professional Miner Program to recognize
alcohol abuse disorder. Nearly one in transportation industry employers to miners who have worked injury-free for
seven workers in these industries report conduct drug and alcohol testing for at least three years. Miners who have
having a serious alcohol problem. The employees in ‘‘safety-sensitive’’ been recognized as Professional Miners
report shows the following rates of use positions, creating a model that many sign a pledge which includes a
for the mining and construction non-regulated employers follow. commitment to ‘‘work to ensure a safe,
industries: 15.7% past month heavy In support of the President’s goal of healthy, and alcohol and drug-free
alcohol use; 12.3% past month any lowering the rate of illegal drug use, the workplace.’’ To date, approximately
illicit drug use; 10.9% past year Department of Labor’s (DOL) Working 15,500 miners have taken this pledge.
dependence or abuse of alcohol; and Partners for an Alcohol- and Drug-Free We participate in the drug-free work
3.6% past year dependence or abuse of Workplace (Working Partners) public place alliance mentioned above to
illicit drugs. outreach campaign raises awareness provide union members and the
Using drugs or alcohol can impair a about the impact of alcohol and other construction industry with information,
miner’s coordination and judgment drug use on businesses and encourages guidance and access to training
significantly at a time when he or she and assists employers to implement resources that will help them
drug-free workplace programs that understand the benefits of drug-free
1 Weber, W., and Cox, C. ‘‘Work-Related Fatal
protect worker safety and health and
Injuries in 1998,’’ Compensations and Working 4 OSHA, ‘‘Safety and Health Topics, Workplace
respect worker rights. DOL’s
Conditions, Spring 2001, pp. 27–29. Substance Abuse,’’ http://www.osha.gov/SLTC/
2 Zwerling, C. ‘‘Current practice and Experience Occupational Safety and Health substanceabuse.
in Drug and Alcohol Testing.’’ Bulletin on Administration (OSHA) recognizes that 5 International Union of Operating Engineers;

Narcotics, vol. 45 (1993), pp. 155–196. drug and alcohol impaired workers United Brotherhood of Carpenters and Joiners of
3 The survey defined current illicit drug use as the
constitute a safety hazard and strongly America; International Association of Bridge,
use of marijuana, cocaine, heroin, hallucinogens, Structural Steel, Ornamental and Reinforcing Iron
inhalants or non-medical use of prescription-type
supports comprehensive drug-free Workers; and International Brotherhood of
pain relievers, tranquilizers, stimulants, or workforce programs, especially in Boilermakers, Iron Ship Builders, Blacksmiths,
sedatives in the past 30 days. certain workplace environments, such Forgers and Helpers.

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57810 Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Proposed Rules

workplace programs and protect industry-wide practice. Many miners, B. Prohibited Substances and Impaired
employee health and safety. Although particularly those working in small Miners
this alliance focuses on the construction mines are not likely to have access to Our existing metal and non-metal
industry, a substantial number of the these programs. standards [30 CFR 56/57.20001], as
union members work on mine property. stated above, require:
On December 8, 2004, we co- IV. Issues
sponsored with the states of Kentucky, We are seeking supporting Intoxicating beverages and narcotics shall
Virginia and West Virginia, a one-day information or data that will help us not be permitted or used in or around mines.
summit for individuals involved with Persons under the influence of alcohol or
evaluate whether there is a need for narcotics shall not be permitted on the job.
coal mining operations and activities in additional federal action to address
the Southern Appalachian region. The safety risks stemming from alcohol and No similar standard applies to coal
summit brought together industry, labor, other drug use by miners, and if so, mines. Please provide examples and
state and federal government officials, whether this should involve rulemaking data to support your answers to the
and public health experts to share and what that regulation should following questions:
information, expertise, and experience include. In general, we are seeking B1. Should we revise this existing
in dealing with the use of or impairment information and comment on the extent metal and non-metal standard and
from alcohol and other drugs on mine of alcohol and other drug use problems establish a standard for coal mines? If
property. At the summit, industry in the mining industry and the impact so, how?
representatives expressed concerns on safety and health, and the types of B2. What substances should be
about the problems related to the use of programs currently in place and their prohibited? Please include comments on
drugs and alcohol in mines. Several coal effectiveness. Additionally, we need to controlled substances, alcohol, misuse
mine operators described the assess both the costs and benefits of any of prescription and over the counter
effectiveness of their drug-free intended federal action. We encourage drugs, and inhalants.
workplace programs and expressed their the public to respond to the questions B3. How should impairment be
concern that such programs were not posed below. We also invite suggestions determined, and who should make the
universal in the industry. on alternatives or supplements to determination?
Along with Virginia and West rulemaking that we should pursue. B4. What actions should operators be
Virginia, we are participating in Please be as specific as possible in your required to take once an impaired miner
Kentucky’s Mine Substance Abuse Task responses to the questions and in is identified (e.g., remove from site,
Force. The task force currently meets suggesting alternatives. Providing send home for the day, refer to the
monthly to examine options for specific examples, as well as cost and Employee Assistance Program or
eliminating the use of or impairment benefit estimates where possible, will elsewhere for assessment, send for drug
from alcohol and other drugs on mine help us evaluate and analyze your test, terminate, fine, or other actions)?
property. comments. B5. What policy or procedures do you
During the first four months of 2005, have regarding employees who are using
in our annual Spring Thaw meetings A. Nature, Extent, and Impact of the legally and properly prescribed drugs
held by each of the 51 field offices of Problem that may cause impairment?
our metal and nonmetal program area,
We believe that the use and misuse of C. Training
we included presentations and
alcohol and other drugs in the mining
discussion of drug and alcohol abuse to Parts 46 and 48 of 30 CFR specify
community and mining workplace
raise awareness and provide training requirements for supervisors
information to mine operators. create a preventable risk to the safety of
and miners. Our regulations currently
Our State Grants Program awards miners. We are concerned that impaired
do not require training in the prevention
federal grants to 49 states and the miners can jeopardize their own safety
of alcohol and other drug misuse. Please
Navajo Nation. Our 2006 Solicitation for and the safety of their fellow miners.
provide examples and data to support
Grant Applications, sent out in July, Please provide examples and data to
your answers to the following questions:
2005, requests that applicants include support your answers to the following
C1. Should our regulations address
substance abuse training as part of new questions:
training in the prevention of alcohol and
miner and annual refresher training A1. What specific substances are most other drug misuse? If so, how?
curriculum. With assistance from DOL’s prevalent and pose the greatest threats C2. Who should receive this training
Working Partners program, we will be to mine safety and health? Please (e.g., supervisors, managers, foremen,
developing materials to assist in include comments on ‘‘controlled miners, miners’ representatives?)
conducting this training. Further, our substances,’’ illegal or illicit drugs, C3. What topics should be included?
National Mine Health and Safety alcohol, inhalants, prescription and C4. What training do you provide to
Academy is producing an awareness over-the-counter drugs, and any other address alcohol and other drug misuse?
video on the hazards of alcohol and substances you believe may create safety
other drugs. This video will be used for hazards when used or misused by D. Inquiries Following Accidents
new miner and annual refresher miners. Section 50.11 of 30 CFR (Investigation
training. A2. Based on your experience and of accidents) requires mine operators to
A number of mine operators have knowledge of the industry, how report and investigate accidents, and
voluntarily implemented drug-free widespread is the use or misuse of establishes criteria for the investigation
workplace programs, and many report alcohol or other drugs in the mining and the report. Please provide examples
that these programs have improved workplace? and data to support your answers to the
workplace safety and reduced workers’ A3. How severe a risk does the use or following questions:
compensation costs. Additionally, some misuse of alcohol and other drugs pose D1. Should we revise 30 CFR 50.11 to
of these operators have told us that to miners’ safety? address alcohol and other drug use
miners at their mines are supportive of A4. What accidents or injuries at your inquiries by mine operators during
these programs. However, the adoption mine in the last five years have involved accident investigations? Section 50.11
of these programs is far from being an alcohol or other drugs? provides as follows:

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Federal Register / Vol. 70, No. 191 / Tuesday, October 4, 2005 / Proposed Rules 57811

§ 50.11 Investigation. drug-free workplace policy; employee drugs or alcohol from the workplace?
(a) After notification of an accident by an education; supervisory training; drug Please provide the costs by type (e.g.,
operator, the MSHA District Manager will testing; and an employee assistance personnel, training, equipment).
promptly decide whether to conduct an program. Please provide examples and F2–a. What costs would be associated
accident investigation and will promptly data to support your answers to the with having a drug-free workplace
inform the operator of his decision. If MSHA following questions: program (e.g., program implementation,
decides to investigate an accident, it will training, drug testing, EAP, restricted
E1. Do you have a drug-free
initiate the investigation within 24 hours of
notification. workplace program at your mine, or work programs, personnel effects)?
(b) Each operator of a mine shall have you instituted any of the above F2–b. Would these costs be borne
investigate each accident and each mentioned components, even if not disproportionately by small mines? If
occupational injury at the mine. Each referred to as a drug-free workplace? so, please explain how and by how
operator of a mine shall develop a report of Please provide a copy of your program much the costs would vary.
each investigation. No operator may use policy and procedures. Is this program F3. What benefits have you derived
Form 7000–1 as a report, except that an part of a broader program? from your efforts to reduce or eliminate
operator of a mine at which fewer than E2. If you have a drug-free workplace alcohol or drugs from the workplace
twenty miners are employed may, with (e.g., lower workers compensation costs,
respect to that mine, use Form 7000–1 as an
policy or program:
investigation report respecting an E2–a. What prompted you to initiate reduced absenteeism, employee morale,
occupational injury not related to an your program? reduction in turnover, accident and
accident. No operator may use an E2–b. What components does your injury reduction and related cost
investigation or an investigation report program have? savings)?
conducted or prepared by MSHA to comply E2–c. Which of your program’s Dated: September 29, 2005.
with this paragraph. An operator shall submit components do you feel are most critical
a copy of any investigation report to MSHA David G. Dye,
and/or effective, and why?
at its request. Each report prepared by the E2–d. Have you been able to Acting Assistant Secretary for Mine Safety
operator shall include, and Health.
document any improvement as a result
(1) The date and hour of occurrence; [FR Doc. 05–19846 Filed 9–29–05; 3:11 pm]
(2) The date the investigation began;
of your program?
(3) The names of individuals participating E2–e. Please provide any data that BILLING CODE 4510–43–P

in the investigation; demonstrate the extent of the problem at


(4) A description of the site; your mine and the effectiveness of your
(5) An explanation of the accident or program in improving safety at your ENVIRONMENTAL PROTECTION
injury, including a description of any mine. AGENCY
equipment involved and relevant events E2–f. What issues/problems have you
before and after the occurrence, and any encountered in implementing your 40 CFR Part 62
explanation of the cause of any injury, the program and how have you resolved [R06–OAR–2004–NM–0002; FRL–7979–4]
cause of any accident or cause of any other them?
event which caused an injury;
E2–g. What actions are taken for Approval and Promulgation of State
(6) The name, occupation, and experience
of any miner involved; miners who violate the terms of the Plans for Designated Facilities and
(7) A sketch, where pertinent, including policy? Pollutants: Bernalillo County, NM;
dimensions depicting the occurrence; E3. If you previously had a drug-free Negative Declaration
(8) A description of steps taken to prevent workplace program, what did it
a similar occurrence in the future; and include? Why was it discontinued? AGENCY: Environmental Protection
(9) Identification of any report submitted E4. If you conduct supervisory Agency (EPA).
under § 50.20 of this part. training on drug issues, how are ACTION: Proposed rule.
D2. What type of alcohol and other supervisors taught to recognize and
SUMMARY: EPA is approving three
drug use inquiries should be made after handle employees who may have
negative declarations submitted by the
accidents (e.g., questioning, drug alcohol and/or other drug problems?
City of Albuquerque (Bernalillo County)
testing)? Please elaborate on how supervisors
certifying that there are no existing
D3. What degree of accident or injury make these determinations.
sources subject to the requirements of
should trigger an inquiry (all, fatal, lost- E5. Do you have an employee
sections 111(d) and 129 of the Clean Air
time, others)? assistance program, and if so, how many
Act under their jurisdiction. These three
D4. How should the information employees have accessed the EAP for
negative declarations are for Sulfuric
collected in the inquiry be used, and by problems related to alcohol and drug
Acid Mist Emissions from Sulfuric Acid
whom? use? How many of these employees
Plants, Fluoride Emissions from
D5. What actions should be required have had their problems resolved
Phosphate Fertilizer Plants, and Total
if it is determined that the use of alcohol successfully?
Reduced Sulfur Emissions from Kraft
or other drugs was a contributing factor
F. Costs and Benefits Pulp Mills. This is a direct final rule
or cause of the accident?
We are particularly interested in the action without prior notice and
E. Drug-Free Workplace Programs costs and benefits you have experienced comment because this action is deemed
Although our regulations currently do in planning and implementing a drug- noncontroversial.
not require programs to address the free workplace program. In addition, we DATES: Written comments must be
safety hazards that the presence of are interested in knowing what you received by November 3, 2005.
alcohol and other drugs in the estimate the costs to be of designing and ADDRESSES: Comments may be
workplace may cause, some mine implementing other elements of a drug- submitted electronically, by mail, by
operators have voluntarily put these free workplace program. Please provide facsimile, or through hand delivery/
programs in place. Typically, such a examples and data to support your courier by following the detailed
program, often called a drug-free answers to the following questions: instructions provided under the ‘‘Public
workplace program, includes at least F1. What costs have you incurred Participation’’ heading in the
one of the following five components: from your efforts to reduce or eliminate Supplemental Information section of

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