On February 2, 2011, the Mine Safety and Health Administration (MSHA) proposed a new rule to make it easier for federal officials to identify and target mines that have committed repeat health and safety violations. The proposed rule would make several major changes to the current "pattern of violations" (POV) process at MSHA. POV is not defined in the Federal Mine Safety and Health Act, but the Secretary of Labor is authorized to establish criteria to determine when a POV exists. Once these criteria have been established, if MSHA identifies a mine as having a POV, each subsequent "significant and substantial" violation of safety rules can result in a government order to withdraw miners from the affected area until the violation has been corrected. The proposed rule states that MSHA will develop new POV criteria based on accident, injury, illness, and compliance records, and will make these criteria available on MSHA's website. The preamble to the proposed rule suggests that MSHA will also make individual mines' "compliance data" available online, so that mine operators will then be able to monitor their own records against the criteria in real time, taking the necessary steps to eliminate any safety and health hazards. In addition, MSHA would increase the frequency of its own review of mines for POV from once a year to at least twice per year. Those mines that approach the threshold for a POV can implement written safety and health programs designed to improve their performance. MSHA will take the implementation of such a program into account as a "mitigating circumstance" in determining whether a mine exhibits a POV. MSHA estimates that about 50 mines each year will implement these health and safety management systems, at a cost of about $22,000 per mine. In encouraging the implementation of management systems, MSHA's approach resembles the management-based regulatory strategies used in other contexts, including OSHA's "Cooperative Compliance Program" ultimately struck down by the D.C. Circuit Court of Appeals on procedural grounds. Perhaps the most significant change in MSHA's proposed rule would be the elimination of existing requirements that MSHA may only consider final citations and orders of violation when making a POV determination. The proposed rule would allow MSHA to include violations found by inspectors even if the mines are still appealing those initial determinations. MSHA believes the existing process, which considers only final citations, provides an incentive for operators to contest citations, thereby slowing down or avoiding the issuance of sanctions. MSHA estimates that the proposed rule would prevent a minimum of 150 non-fatal injuries per year, saving $9.3 million annually. The agency estimates that all the costs associated with the rule would amount to about $4.2 million per year. The agency is taking public comments on its proposed rule through April 4, 2011.
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