Vol. 78

Wednesday,

No. 15

January 23, 2013

Part IV

Department of Labor

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Mine Safety and Health Administration
30 CFR Part 104
Pattern of Violations; Final Rule

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Federal Register / Vol. 78, No. 15 / Wednesday, January 23, 2013 / Rules and Regulations

DEPARTMENT OF LABOR

I. Executive Summary

Mine Safety and Health Administration

A. Purpose of the Regulatory Action
Congress enacted the pattern of
violations (POV) provision to provide
MSHA with an additional enforcement
tool, when other tools had proven
ineffective. The final rule implements
the statutory and legislative intent that
safe and healthful conditions be
restored at noncompliant mines.
This rule will have both quantitative
and qualitative benefits and will reduce
accidents, injuries, and fatalities in
mines. This final rule is responsive to
recommendations in the Office of the
Inspector General’s Report (OIG Report)
on MSHA’s implementation of its POV
authority. The safety and health
conditions that led to the accident at the
Upper Big Branch (UBB) mine on April
5, 2010, further demonstrated the need
to revise the POV regulation.
The POV final rule is one of MSHA’s
highest priority regulatory initiatives. It
strengthens MSHA’s ability to focus on
those mine operators who demonstrate
a disregard for the health and safety of
miners through a recurring pattern of
significant and substantial (S&S)
violations. This final rule allows MSHA
to focus on the most troubling mines,
provide those operators with notice that
they are out of compliance, and review
their health and safety conditions until
they are improved. This rule will not
affect the vast majority of mines that
operate in compliance with the Federal
Mine Safety and Health Act of 1977
(Mine Act).
Congress intended that MSHA act
quickly to address mines with recurring
safety and health violations. MSHA’s
existing POV regulation limits the
Agency’s effective use of the POV
provision, resulting in delays in taking
action against chronic violators and
depriving miners of necessary safety
and health protections.

30 CFR Part 104
RIN 1219–AB73

Pattern of Violations
Mine Safety and Health
Administration, Labor.
ACTION: Final rule.
AGENCY:

The Mine Safety and Health
Administration (MSHA) is revising the
Agency’s existing regulation for pattern
of violations (POV). MSHA has
determined that the existing regulation
does not adequately achieve the intent
of the Federal Mine Safety and Health
Act of 1977 (Mine Act) that the POV
provision be used to address mine
operators who have demonstrated a
disregard for the health and safety of
miners. Congress included the POV
provision in the Mine Act so that mine
operators would manage health and
safety conditions at mines and find and
fix the root causes of significant and
substantial (S&S) violations, protecting
the health and safety of miners. The
final rule simplifies the existing POV
criteria, improves consistency in
applying the POV criteria, and more
effectively achieves the Mine Act’s
statutory intent. It also encourages
chronic safety violators to comply with
the Mine Act and MSHA’s health and
safety standards.
DATES: The final rule is effective on
March 25, 2013.
FOR FURTHER INFORMATION CONTACT:
George F. Triebsch, Director, Office of
Standards, Regulations, and Variances,
MSHA, at triebsch.george@dol.gov
(email); 202–693–9440 (voice); or 202–
693–9441 (facsimile). (These are not
toll-free numbers.)
SUPPLEMENTARY INFORMATION:
SUMMARY:

Table of Contents

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I. Executive Summary
II. Background
III. Section-by-Section Analysis
IV. Regulatory Economic Analysis
V. Feasibility
VI. Regulatory Flexibility Analysis and Small
Business Regulatory Enforcement
Fairness Act
VII. Paperwork Reduction Act of 1995
VIII. Other Regulatory Considerations
IX. References

Availability of Information
Access rulemaking documents
electronically at http://www.msha.gov/
regsinfo.htm or http://
www.regulations.gov on the day
following publication of this notice in
the Federal Register.

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B. Summary of Major Provisions
The final rule simplifies the existing
POV criteria, improves consistency in
applying the POV criteria, and increases
the efficiency and effectiveness in
issuance of a POV notice. The final POV
rule:
• Retains the existing regulatory
requirement that MSHA review all
mines for a POV at least once each year;
• Eliminates the initial screening and
the potential pattern of violations
(PPOV) notice and review process;
• Eliminates the existing requirement
that MSHA can consider only final
orders in its POV review;
• Like the existing rule, establishes
general criteria that MSHA will use to
identify mines with a pattern of

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significant and substantial (S&S)
violations;
• Provides for posting, on MSHA’s
Web site, the specific criteria (e.g., the
number or rate of S&S violations) that
MSHA will use in making POV
determinations. This is consistent with
existing practice; and
• Mirrors the provision in the Mine
Act for termination of a POV.
In addition, in response to commenter
concerns, the preamble to the final rule
addresses:
• MSHA’s Monthly Monitoring Tool
for Pattern of Violations that operators
can use to monitor their compliance
performance;
• MSHA’s commitment to requesting
stakeholder input to revisions of the
specific criteria; and
• MSHA’s response to commenters’
due process concerns;
(1) Operator can submit a corrective
action program;
(2) Operator can request a meeting
with the District Manager to discuss
discrepancies in MSHA data; and
(3) Operator can request expedited
temporary relief from a POV closure
order.
C. Projected Costs and Benefits
This rule is not economically
significant. Net benefits are
approximately $6.7 million. Total
annualized benefits are $12.6 million
and total annualized costs are $5.9
million. The final rule will not have a
significant economic impact on a
substantial number of small mining
operations.
MSHA estimates that the final rule
will prevent 1,796 non-fatal and nondisabling injuries over 10 years.
MSHA expects that qualitative
benefits will:
• Encourage chronic violators to more
effectively and quickly comply with
safety and health standards;
• Provide for a more open and
transparent process;
• Promote a culture of safety and
health at mines and hold operators more
accountable; and
• Simplify MSHA’s procedures to
improve consistency.
II. Background
A. Statutory Provision
In enacting the Federal Mine Safety
and Health Act of 1977 (Mine Act),
Congress included the pattern of
violations (POV) provision in section
104(e) to provide MSHA with an
additional enforcement tool to protect
miners when the mine operator
demonstrated a disregard for the health
and safety of miners. The need for such

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a provision was forcefully demonstrated
during the investigation of the Scotia
Mine disaster, which occurred in 1976
in Eastern Kentucky (S. Rep. No. 181,
95th Cong., 1st Sess. at 32). As a result
of explosions on March 9 and 11, 1976,
caused by dangerous accumulations of
methane, 23 miners and three mine
inspectors lost their lives. The Scotia
Mine had a chronic history of persistent,
serious violations that were repeatedly
cited by MSHA. After abating the
violations, the mine operator would
permit the same violations to recur,
repeatedly exposing miners to the same
hazards. The accident investigation
showed that MSHA’s then existing
enforcement program had been unable
to address the Scotia Mine’s history of
recurring violations.
The Mine Act places the
responsibility for ensuring the health
and safety of miners on mine operators.
The legislative history of the Mine Act
emphasizes that Congress reserved the
POV provision for mine operators with
a record of repeated significant and
substantial (S&S) violations. Congress
intended the POV provision to be used
for mine operators who have not
responded to the Agency’s other
enforcement efforts. The legislative
history states that Congress believed
that the existence of a pattern would
signal to both the mine operator and the
Secretary that ‘‘there is a need to restore
the mine to effective safe and healthful
conditions and that the mere abatement
of violations as they are cited is
insufficient’’ (S. Rep. No. 181, supra at
33).
The Mine Act does not define pattern
of violations. Section 104(e)(4)
authorizes the Secretary ‘‘to establish
criteria for determining when a pattern
of violations of mandatory health or
safety standards exists.’’ Congress
provided the Secretary with broad
discretion in establishing these criteria,
recognizing that MSHA may need to
modify the criteria as experience
dictates.
B. Regulatory History
MSHA proposed a POV regulation in
1980 (45 FR 54656). That proposal
included: purpose and scope, initial
screening, pattern criteria, issuance of
notice, and termination of notice.
Commenters were generally opposed to
the 1980 proposal and it was never
finalized.
On February 8, 1985 (50 FR 5470),
MSHA announced its withdrawal of the
1980 proposed rule and issued an
advance notice of proposed rulemaking
(ANPRM) that addressed many of the
concerns expressed about the 1980
proposal. In the 1985 ANPRM, MSHA

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stated that it intended to focus on the
health and safety record of each mine
rather than on a strictly quantitative
comparison of mines to industry-wide
norms. In the ANPRM, MSHA stated
that the Agency envisioned simplified
criteria, focusing on two principal
questions:
• Were S&S violations common to a
particular hazard or did S&S violations
throughout the mine represent an
underlying health and safety problem?
• Is the mine on a § 104(d)
unwarrantable failure sequence,
indicating that other enforcement
measures had been ineffective?
MSHA requested suggestions for
additional factors the Agency should
use in determining whether a POV
exists and requested ideas on
administrative procedures for
terminating a pattern notice.
Based on the comments on the 1985
ANPRM, MSHA published a new
proposed rule on May 30, 1989 (54 FR
23156), which included criteria and
procedures for identifying mines with a
pattern of S&S violations. The 1989
proposal included procedures for initial
identification of mines developing a
POV; criteria for determining whether a
POV exists at a mine; notification
procedures that would provide both the
mine operator and miners’
representative an opportunity to
respond to the Agency’s evaluation that
a POV may exist; and procedures for
terminating a POV notice. The 1989
proposal addressed the major issues
raised by commenters on the 1980
proposal and the 1985 ANPRM.
Commenters’ primary concerns were
MSHA’s policies for enforcing the S&S
provisions of the Mine Act, the civil
penalty regulation, and MSHA’s
enforcement of the unwarrantable
failure provision of the Mine Act.
MSHA held two public hearings. After
consideration of the information and
data in the rulemaking record, MSHA
issued a final rule on July 31, 1990 (55
FR 31128).
MSHA proposed revisions to its POV
rule on February 2, 2011 (76 FR 5719).
The Agency held five public hearings:
June 2 in Denver, CO; June 7 in
Charleston, WV; June 9 in Birmingham,
AL; June 15 in Arlington, VA; and July
12 in Hazard, KY. MSHA also extended
the comment period three times to April
18, June 30, and August 1, 2011.
C. Enforcement History
Until mid-2007, POV screening was
decentralized; MSHA District offices
were responsible for conducting the
required annual POV screening of
mines. Following the accidents at the
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2006, MSHA developed a centralized
POV screening process.
MSHA initiated a newly developed
‘‘Pattern of Violations Screening Criteria
and Scoring Model’’ in mid-2007, using
a computer program based on the
screening criteria and scoring model to
generate lists of mines with a potential
pattern of violations (PPOV). In late
2009, MSHA determined that the
Agency needed to revise its POV
regulation and placed Part 104—Pattern
of Violations on the Agency’s 2010
Spring Semi-annual Regulatory Agenda.
The safety and health conditions at the
Upper Big Branch (UBB) mine that led
to the accident on April 5, 2010, further
demonstrated the need to update the
POV regulation. As one commenter
stated, the UBB mine avoided being
placed on a POV despite an egregious
record of noncompliance.
In order to increase transparency, the
Agency also created a user-friendly,
‘‘Monthly Monitoring Tool for Pattern of
Violations’’ (on-line Monthly
Monitoring Tool) that provides mine
operators, on a monthly basis, a
statement of their performance with
respect to each of the PPOV screening
criteria posted on MSHA’s Web site.
Prior to MSHA’s creation of the online Monthly Monitoring Tool, mine
operators had to track each mine’s
compliance performance and calculate
the statistics to determine whether the
mine met each of the specific screening
criteria. Many mine operators relied on
MSHA to issue a PPOV notice. Now,
with MSHA’s on-line Monthly
Monitoring Tool, they do not have to
calculate the statistics. Operators,
including those that own multiple
mines, can easily monitor their
performance.
MSHA’s on-line Monthly Monitoring
Tool is quick and easy to use; it does not
require extra skill or training. To use the
on-line Monthly Monitoring Tool, mine
operators enter their mine ID number,
view their mine’s performance, and see
whether that performance triggers the
applicable threshold for each of the
screening criteria. The mine operator:
(1) Goes to MSHA’s Web site at
http://www.msha.gov;
(2) Goes to the Pattern of Violations
Single Source Page;
(3) Enters the mine ID number under
the ‘‘Monthly Monitoring Tool for
Pattern of Violations;’’ and
(4) Clicks on the ‘‘Search’’ button.
The on-line Monthly Monitoring Tool
reports results in clear, color-coded
indicators of the mine’s performance
(red YES = meets criterion, green NO =
does not trigger criterion) for each
criteria and a mine’s overall
performance.

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In 2010, the U.S. Department of
Labor’s Office of the Inspector General
(OIG) audited MSHA’s POV program.
On September 29, 2010, the OIG
published its audit report titled, ‘‘In 32
Years MSHA Has Never Successfully
Exercised Its Pattern of Violations
Authority’’ (Report No. 05–10–005–06–
001). The OIG found that the existing
POV regulation created limitations on
MSHA’s authority that were not present
in the Mine Act, specifically,
• Requiring the use of final citations
and orders in determining a PPOV, and
• Creating a PPOV warning to mine
operators and a subsequent period of
further evaluation before exercising its
POV authority.
The final rule allows MSHA to focus
on the most troubling mines that
disregard safety and health conditions
and will not affect the vast majority of
mines, which operate substantially in
compliance with the Mine Act.
III. Section-by-Section Analysis
A. § 104.1

Purpose and Scope

Final § 104.1 provides the purpose
and scope of the rule and is
substantively unchanged from the
existing provision.
Commenters suggested that the scope
be changed to exclude those mines with
effective safety and health management
programs that have already
demonstrated proactive measures to
protect the health and safety of miners.
Other commenters suggested that MSHA
exempt salt mines that have an
exemplary record of safety.
Consistent with the Mine Act, the
final rule covers all mines. MSHA
acknowledges, however, that the
majority of mine operators are
conscientious about providing a safe
and healthful work environment for
their miners. The POV regulation is not
directed at these mine operators.
Consistent with the legislative history, it
is directed at those few operators who
have demonstrated a repeated disregard
for the health and safety of miners and
the health and safety standards issued
under the Mine Act. The final rule
addresses situations where a mine
operator allows violations to occur and
hazardous conditions to develop
repeatedly without taking action to
ensure that the underlying causes of the
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B. § 104.2

Pattern Criteria

Like the proposal, final § 104.2
combines existing §§ 104.2 and 104.3
into a single provision. In combining
existing §§ 104.2 and 104.3, the final
rule eliminates the initial screening
review process and the PPOV

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notification. Like the proposal, the final
rule eliminates the requirement that
MSHA consider only final orders when
evaluating mines for a POV. Final
§ 104.2 specifies the general criteria that
MSHA will use to identify mines with
a POV. The final rule simplifies the
process for determining whether a mine
has a POV and more accurately reflects
the statutory intent.
1. § 104.2—Elimination of Potential
Pattern of Violations Initial Screening
and Notification
Final § 104.2, like the proposal, does
not include a provision for a PPOV.
Commenters in support of eliminating
the PPOV stated that mine operators
should know the details of their
compliance history; there is no need for
MSHA to warn an operator in advance
that a mine may be subject to enhanced
enforcement measures. Commenters
said that eliminating the PPOV process
would remove the incentive for mine
operators to make just enough shortterm improvements to get off the PPOV
list, but then backslide and wait for
MSHA to issue the next PPOV notice.
Commenters stated that the elimination
of the PPOV process should serve to
effect greater improvements for more
miners, at more operations, and on a
longer-term basis.
Many commenters opposed the
proposed elimination of the PPOV
process. These commenters stated that
elimination of the PPOV provisions
denies mine operators their
constitutional rights to adequate notice
and a fair opportunity to be heard before
MSHA issues one of its toughest
sanctions. They also stated that
elimination of the PPOV process further
aggravates the impact of basing POV
decisions on violations issued rather
than on final orders.
Many commenters stated that
eliminating the existing PPOV notice
worsens the impact of any inaccurate
data on which the POV is based. Some
commenters stated that self-monitoring
is unlikely to result in the prompt action
that a PPOV notice would have
triggered. Some stated that the problem
in relying on self-monitoring is that
MSHA and mine operators often reach
different conclusions based on the same
data. In their view, the existing PPOV
notice process is straightforward and
provides an opportunity for mine
operators to address differences with
MSHA. Some commenters stated that
the elimination of PPOV also eliminates
an element of transparency, as well as
any chance of discussing the basis for
the POV with MSHA before suffering
loss due to inaccurate information or
data.

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Commenters pointed out that 94
percent of mine operators who received
the PPOV notice reduced their S&S
citations by at least 30 percent and 77
percent reduced S&S citations to levels
at or below the national average for
similar mines. These commenters stated
that the initial screening is effective in
identifying poor performance. Some
said that the PPOV process has been
effective at rehabilitating a significant
number of problem mines and should
not be changed. Commenters urged
MSHA to focus efforts on those few
mine operators who fail to improve
performance, to not eliminate a program
that allows mine operators and MSHA
to work together, and to retain the
existing two-step process.
Beginning in June 2007 through
September 2009, MSHA conducted
seven cycles of PPOV evaluations, on an
average of every 6 to 9 months. In each
cycle, eight to 20 of all mines met the
criteria for issuance of a PPOV. During
that period, MSHA sent 68 PPOV letters
to 62 mine operators (six mine operators
received more than one notification).
After receiving the PPOV, 94 percent of
the mines that remained in operation to
the next evaluation reduced the rate of
S&S citations and orders by at least 30
percent, and 77 percent of the mines
reduced the rate of S&S citations and
orders to levels at or below the national
average for similar mines. These
improvements declined over time at
some mines. Compliance at 21 percent
(13/62 = 0.21) of the 62 mines that
received PPOV letters deteriorated
enough over approximately a 24-month
period to warrant a second PPOV letter
(MSHA Assessment data). Six of these
mines were actually sent a second PPOV
letter, while the other seven (of the 13)
could have received a second letter but
did not, generally due to mitigating
circumstances. MSHA believes that the
final rule will result in more sustained
improvements in mines that may have
conditions that approach the POV
criteria.
Commenters stated that MSHA
already possesses the graduated
enforcement tools necessary to shut
down all or any part of unsafe
operations through the use of
unwarrantable failure to comply,
imminent danger, and other elevated
enforcement actions. Commenters also
stated that MSHA fell short by not
requiring mines receiving a PPOV to
make fundamental safety process
changes as part of their corrective
actions. Commenters recognized that
long-term continuous safety
improvement requires fundamental
changes in an organization’s culture,

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performance processes, and safety
leadership.
Some commenters stated that
elimination of PPOV places a greater
burden on small, remote mine operators
that do not have computers or internet
access. These operators will likely be
unable to access the MSHA on-line
databases on a timely basis to track their
compliance performance. One
commenter stated that MSHA should
continue to provide written notification
to mines in danger of establishing a
pattern of violations unless a company
requests that it not be sent.
MSHA’s existing POV rule was
developed before the widespread use of
the Internet or even computers in many
mines. Now, with MSHA’s on-line
Monthly Monitoring Tool, operators,
including those that own multiple
mines, can easily and frequently
monitor their compliance performance.
MSHA believes that the final rule is an
improvement over the PPOV screening
process in the existing regulation. The
final rule encourages mine operators to
continually evaluate their compliance
performance and respond appropriately.
Through MSHA’s on-line Monthly
Monitoring Tool, mine operators now
have information readily available
regarding each mine, the level of
violations compared with the criteria,
and an indication of whether the mine
in question has triggered one of the POV
criteria. This information eliminates
uncertainty surrounding POV status and
the need for MSHA to inform mine
operators of a PPOV, since mine
operators are able to access that
information at any time. In addition,
MSHA does not believe that eliminating
the PPOV notice poses a burden on
mine operators who may not have
access to a computer or the internet. In
the rare situations where mine operators
do not have access to a computer or the
internet, they may request periodic POV
status updates from MSHA and the
Agency will provide this information to
them at no cost. Alternatively, MSHA
can assist small or remote mine
operators by providing them this
information at the opening conference
of each inspection visit.
Mine operators are responsible for
operating their mines in compliance
with all applicable standards and
regulations. The on-line Monthly
Monitoring Tool, which is currently
available, will continue to provide mine
operators, on a monthly basis, their
performance status relative to the POV
screening criteria posted on MSHA’s
Web site. MSHA developed the on-line
Monthly Monitoring Tool based on
feedback from the mining industry.
MSHA conducted a stakeholder meeting

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prior to announcing the implementation
of the ‘‘Monthly Monitoring Tool for
Pattern of Violations’’ on April 6, 2011.
At this meeting, MSHA demonstrated
use of the on-line Monthly Monitoring
Tool. The POV Single Source Page at
http://www.msha.gov/POV/
POVsinglesource.asp contains the
Monthly Monitoring Tool; Pattern of
Violations Screening Criteria; Pattern of
Violations (POV) Procedures Summary;
a copy of the applicable regulations; and
contact information to request
assistance. MSHA receives and
responds to requests for information
about the screening criteria, the
procedures, and mine-specific data
related to the POV procedures and will
continue to do so.
Using the enforcement data and
specific POV criteria on MSHA’s Web
site, mine operators can perform the
same review of their compliance and
accident data as MSHA. MSHA’s on-line
Monthly Monitoring Tool is selfeffectuating, quick, and easy to use; it
does not require extra skill or training,
technical assistance, or interpretation.
Indeed, MSHA data indicate that
operators are already making frequent
use of the tool—there are nearly 2,200
hits per month on the on-line Monthly
Monitoring Tool on the POV single
source page.
Elimination of PPOV underscores the
mine operators’ responsibility to
monitor their own compliance records
and encourages them to verify that the
information on MSHA’s Web site is
accurate. This is consistent with the
Mine Act’s premise that the mine
operator has the authority, control, and
primary responsibility for the health
and safety conditions at their mines.
As stated earlier, the OIG concluded,
and MSHA agrees, that the existing
PPOV and final order provisions are
impediments to MSHA’s POV authority
that were not required by the Mine Act.
Experience has shown that the existing
PPOV provision created the unintended
consequence of encouraging some mine
operators to achieve short-term
improvements instead of adopting
systemic, long-term improvements in
their health and safety management
culture. MSHA believes that eliminating
the initial screening and PPOV
provisions will create an additional
incentive for mine operators to address
the root causes of recurrent S&S
violations and will facilitate long-term
compliance at mines with a repeated
history of S&S violations. Based on the
Agency’s experience under the existing
regulation, MSHA has concluded that
incentivizing greater use of the on-line
Monthly Monitoring Tool by mine

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operators facilitates a more proactive
approach to health and safety.
2. § 104.2—Elimination of the Final
Order Requirement
Final § 104.2 eliminates existing
§ 104.3(b), which provides that—
Only citations and orders issued after
October 1, 1990, and that have become final
shall be used to identify mines with a
potential pattern of violations under this
section.

As discussed in the proposal, the final
order requirement has proven itself to
be an impediment to MSHA’s use of
section 104(e) of the Mine Act as
contemplated by Congress. Given the
number of cases pending before the
Federal Mine Safety and Health Review
Commission (Commission), the final
order requirement limits MSHA’s ability
to consider a mine’s recent compliance
record when it evaluates mines for a
POV. For example, at the end of CY
2005, there were approximately 1,000
cases containing just over 4,000
citations and orders in contest.
Currently, the number of open contested
cases is 10,730 containing close to
59,000 citations and orders. The amount
of time required to litigate these cases
increased in each year from CY 2006
through CY 2011, increasing from an
average of 214 days (7 months) from
contest to decision in CY 2005 to 601
days (20 months) in CY 2011. The final
rule removes this impediment by
eliminating the requirement to consider
only final orders and aligns the POV
provision with the intent of the Mine
Act.
Several commenters supported
MSHA’s proposal to eliminate the final
order requirement. Some agreed with
MSHA’s conclusion that the existing
regulation impedes MSHA’s ability to
use the POV enforcement tool in the
manner intended by Congress. Some
commenters stated that the final order
requirement makes it impossible to use
the POV tool to address serious current
health and safety problems at mines.
They stated that by the time a citation
becomes final, the health and safety
conditions at the mine may bear no
relationship to what they were when the
hazard was originally identified and
cited.
Commenters supporting elimination
of the final order requirement stated that
the plain language of the Mine Act and
its legislative history do not require
MSHA to rely on final orders when
identifying a pattern of violations. These
commenters stated that the language of
the Mine Act and its legislative history
support MSHA’s decision to consider
citations and orders as issued, rather

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than final orders, when determining
whether a mine has demonstrated a
pattern of S&S violations. The
commenters cited portions of the
legislative history where Congress made
clear that it intended MSHA to use the
pattern sanction simultaneously with
other provisions of the Act when it is
necessary to bring a mine into
compliance. The commenters agreed
with MSHA’s conclusion that the final
order requirement interferes with
MSHA’s ability to use the pattern
sanction in conjunction with the Mine
Act’s other enforcement provisions.
Based on Agency experience with the
existing regulation, the final rule, like
the proposal, includes all citations and
orders issued by MSHA in the Agency’s
POV determination. This is consistent
with the language, legislative history,
and purpose of the Mine Act’s POV
provision. Section 104(e)(1) of the Mine
Act states that an operator shall be given
a POV notice—

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* * * if it has a pattern of violations of
mandatory health or safety standards. * * *
which are of such nature as could have
significantly and substantially contributed to
the cause and effect of coal or other mine
health or safety hazards. (30 U.S.C. 814(e)(1))

Nothing in section 104(e) of the Mine
Act or the legislative history states that
POV determinations may only be based
on final citations and orders.
Not only does the language of section
104(e) contain nothing that prohibits the
Secretary from basing POV
determinations on non-final citations
and orders, but section 104(e)(4)
explicitly provides that the Secretary
‘‘shall make such rules as [s]he deems
necessary to establish criteria for
determining when a pattern of
violations of mandatory health or safety
standards exists’’.
Because Congress explicitly delegated
to the Secretary the authority to
establish POV criteria, and because
nothing in the language of section 104(e)
explicitly limits the Secretary’s
discretion to base POV determinations
on non-final citations and orders, the
Secretary’s interpretation that she may
do so must be given ‘‘controlling
weight’’ (Eagle Broadcasting Group LTC
v. FCC, 563 F.3d 543, 551–52 (D.C. Cir.
2009)).
The elimination of the final order
provision in the final rule is also
consistent with the legislative history.
The Senate Report accompanying the
Mine Act states that section 104(e) was
enacted in response to the Scotia mine
disaster, an accident that ‘‘forcefully
demonstrated’’ the need for such a
provision (S. Rep. No. 181, 95th Cong.,
1st Sess. 32, reprinted in Legislative

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History of the Federal Mine Safety and
Health Act of 1977). The Report noted
that the Senate’s investigation of that
disaster revealed that—
* * * the Scotia mine, as well as other
mines, had an inspection history of recurrent
violations, some of which were tragically
related to the disasters, which the existing
enforcement scheme was unable to address.
(Id. at 32)

The Senate Report’s use of the phrase
‘‘inspection history’’ rather than the
phrase ‘‘violation history’’ indicates
Congress’ intent that POV
determinations should be based on
inspection histories, i.e., findings by the
Secretary of violations during
inspections, rather than only on
adjudicated violations.
The Senate Report also specifically
referenced the similarities between
section 104(e) and 104(d) of the Mine
Act and stated that the POV sequence
parallels the existing unwarrantable
failure sequence (Id. at 33). That
statement reflects Congress’ intent that
POV determinations, like section
104(d)(1) and (2) withdrawal orders,
should be based on non-final citations
and orders.
In addition, the Senate Report stated
that the Secretary have both section
104(d) and 104(e) enforcement tools
available for use simultaneously if the
situation warrants (Id. at 34). Congress
specifically indicated its intent that the
Secretary use the POV enforcement tool
as a last resort when other enforcement
tools (available to the Secretary) fail to
bring an operator into compliance. This
underscores Congress’ intent that all
enforcement tools be used together, and
in the same manner, that is, use of
issued citations and orders, as opposed
to final orders.
Finally, the Senate Report
emphasized Congress’ intention that the
Secretary have ‘‘broad discretion’’ in
establishing criteria for determining
when a pattern exists, and that the
Secretary continually evaluate and
modify the POV criteria as she deems
necessary (Id. at 33). This specific grant
of discretion to the Secretary supports
the Agency’s action in the final rule to
eliminate the use of only final orders in
making a POV determination. The final
rule supports the enforcement structure
in the Mine Act that the Secretary use
non-final citations and orders as the
basis for section 104(e) withdrawal
orders.
Interpreting section 104(e) to permit
the Secretary to rely on non-final
citations and orders in determining POV
status is consistent with the purpose of
section 104(e)—protecting miners
working in mines operated by habitual

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offenders whose chronic S&S violations
have not been deterred by the
Secretary’s other enforcement tools. The
Secretary has determined that the final
order requirement in the existing rule
has prevented the Secretary from using
section 104(e) as the effective
enforcement tool that Congress
intended. Some S&S citations and
orders do not reach the final order stage
for years.
The average number of days from
contest to disposal (the time it currently
takes for a typical citation to make it all
the way through the appeals process)
was 534 days in calendar year 2011
(about 1.5 years). The number of
citations disposed of in less than two
years was 131,000 (or 82%). Fourteen
percent were disposed of within two to
three years, 3% were disposed of within
three to four years, and 1% were
disposed of in four or more years.
The contest rate for S&S violations
increased greatly following MSHA’s
revision of its civil penalty regulations
in 2007, pursuant to the Mine
Improvement and New Emergency
Response Act (MINER Act) of 2006. The
backlog of contested cases at the
FMSHRC has grown so large that even
with an increase in the numbers of cases
disposed of in 2011, final orders may
not be issued for two or three years. As
stated by one commenter, the delay
caused by the backlog allows POV
sanctions to be postponed or avoided
altogether. This often leaves the
Secretary unable to base POV
determinations on mine operators’
recent compliance history—no matter
how egregious that history may be.
Interpreting section 104(e) to permit the
Secretary to base compliance
determinations on non-final citations or
orders will allow the Secretary to
protect miners working in mines where
there is a recent history of S&S
violations and where the mine is
operated by habitual offenders who
have been undeterred by other
enforcement sanctions—precisely the
type of circumstances section 104(e)
was intended to correct.
Many commenters opposed the
Agency’s proposal to eliminate the final
order requirement. Some stated that the
proposal violates mine operators’ due
process rights under the Fifth
Amendment to the United States
Constitution. Commenters stated that
the use of violations issued to trigger
punitive POV sanctions without a
meaningful opportunity for prior
independent review, together with the
proposed rule’s elimination of the PPOV
provisions, denies mine operators the
constitutional right to notice and the
opportunity to be heard.

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Federal Register / Vol. 78, No. 15 / Wednesday, January 23, 2013 / Rules and Regulations
Commenters who opposed
elimination of the final order
requirement were concerned with the
possibility of the erroneous deprivation
of property that may occur without
adequate procedural protections. They
stated that the property interest at
stake—the economic viability of a
mine—is so jeopardized by the threat of
the POV sanction that MSHA must
provide maximum protection to mine
operators before it exercises POV
authority. Some commenters stated that
the proposed rule, as written, does not
provide adequate procedural
protections. They cited cases from the
U.S. Supreme Court and other federal
courts to support their position that due
process requires MSHA to provide
notice and a hearing to mine operators
before imposing the POV sanction.
MSHA does not agree with
commenters who stated that elimination
of the PPOV and final order provisions
violate mine operators’ due process
rights under the U.S. Constitution.
Citations and orders, together with
notice of the POV criteria posted on the
Web site, and the on-line Monthly
Monitoring Tool, will provide sufficient
notice to alert operators of the
possibility that they may be subject to
a POV. Under existing MSHA
procedures, mine operators can discuss
citations and orders with the inspector
both during the inspection and at the
closeout conference. They also can
request a safety and health conference
with the field office supervisor or the
district manager to review citations and
orders and present any additional
relevant information. Additionally,
mine operators who may be
approaching POV status have the
opportunity to implement a corrective
action program, and MSHA considers a
mine operator’s effective
implementation of an MSHA-approved
corrective action program as a
mitigating circumstance in its POV
review.
The Supreme Court has held that
adequate post-deprivation procedures
are sufficient to satisfy due process
where public health and safety are at
stake. See Ewing v. Mytinger &
Casselberry, Inc., 339 U.S. 594, 595–596
(1950) (affirming the FDA’s seizure and
destruction of mislabeled drugs as
‘‘misleading to the injury or damage of
the purchaser or consumer’’ without the
opportunity for a pre-deprivation
hearing, even though the particular
drugs seized were not hazardous);
Mackey v. Montrym, 443 U.S. 1 (1979)
(holding that a state law depriving
drivers of their licenses on suspicion of
operating under the influence of alcohol
was constitutional without a pre-

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deprivation hearing, due to the
compelling interest in highway safety).
Where prompt post-deprivation review
is available to correct any administrative
error, generally no more is required than
that the pre-deprivation procedures
used be designed to provide a
reasonably reliable basis for concluding
that the facts justifying the official
action are as a responsible government
official warrants them to be. Mackey,
supra, at 13.
The Mine Act guarantees due process
for mine operators subject to MSHA
enforcement actions. A mine operator
may seek expedited temporary relief
under section 105(b)(2) of the Mine Act
from a pattern designation provided a
withdrawal order is issued under
section 104(e). Operators must have at
least one withdrawal order in order to
contest the pattern designation.
Requests for temporary relief are
reviewed within 72 hours and assigned
to a Commission Administrative Law
Judge as a matter of procedure, provided
the request raises issues that require
expedited review. The Mine Act’s
expedited review procedure satisfies the
Constitution’s due process
requirements. United Mine Workers v.
Andrus, 581 F.2d 888 (D.C. Cir. 1978).
The on-line Monthly Monitoring Tool
will allow operators to review their
compliance information on a monthly
basis and bring to MSHA’s attention any
data discrepancies in the POV database
as it is updated each month. Mine
operators will have an opportunity to
meet with District Managers for the
purpose of correcting any discrepancies
after MSHA conducts its POV
screenings and issues a POV. As with all
citations and orders issued under the
Mine Act, mine operators have the right
to contest any citation or order before
the FMSHRC and operators may seek
expedited review of a POV closure
order.
3. § 104.2(a)—POV Review at Least
Annually
Final § 104.2(a), like the existing rule,
provides that MSHA will review the
compliance records of mines at least
once each year to determine if any
mines meet the specific POV criteria
posted on MSHA’s Web site at http://
www.msha.gov/POV/
POVsinglesource.asp. The proposed
rule would have increased the
frequency of MSHA’s review to at least
twice per year. Commenters stated that
the proposed provision for at least two
reviews per year was unnecessary;
MSHA can conduct multiple reviews
per year under the existing rule, which
provided for a POV review at least once
a year. Some commenters stated that the

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5061

reviews should be automated and data
adjusted essentially in real time so that
MSHA could respond quickly, e.g.,
when an inspector issues an
inordinately large number of citations
during an inspection of a bad actor.
Some commenters supported the
proposed twice-a-year review, stating
that more frequent reviews provide
mine operators an incentive to monitor
their compliance more closely.
After reviewing all comments, the
final rule retains the once-a-year review
in the existing rule. Under the final rule,
the Agency could conduct more than
one review a year if conditions warrant,
as it has done under the existing rule.
4. § 104.2(a)(1) to (8)—General Pattern of
Violations Criteria for MSHA Periodic
Review
Final § 104.2(a), like the proposal,
contains the criteria that MSHA will
consider in evaluating whether a mine
exhibits a POV. These criteria do not
include numerical measures. MSHA
will post the specific criteria, with
numerical data, on the Agency’s Web
site at http://www.msha.gov/POV/
POVsinglesource.asp for use by mine
operators in evaluating their mine’s
performance. As stated during the
proposed rulemaking, when MSHA
revises the specific criteria, the Agency
will post the revised specific criteria on
the Agency’s Web site for comment (see
section III.B.7 of this preamble).
Multiple Violations
Commenters stated that MSHA seems
to be basing POV determinations on
multiple unrelated violations. They
stated that a POV must be based on
repeated violations of the same or
related standards.
The Mine Act does not require that
MSHA base POV decisions on repeated
violations of the same or related
standards. The pattern criteria in the
existing regulation for a PPOV include
repeated S&S violations of a particular
standard or standards related to the
same hazard that are final orders of the
FMSHRC. Like the existing rule, under
the final rule, MSHA will base POV
decisions on a complete review of a
mine’s health and safety conditions, not
only on repeated violations of the same
or related standards as recommended by
some commenters. MSHA believes that
limiting the scope of the POV regulation
to repeated violations of the same or
related standards would unnecessarily
hinder MSHA’s ability to address
chronic violators and would ignore the
reality that, in dangerous safety
situations there are often multiple
contributing violations.

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Length of Review Period
Some commenters stated that the
review must be limited, e.g., to citations
issued within the previous 2 years.
Some commenters expressed concern
that, because of the Commission’s heavy
case load, many citations could be
adjudicated at the same time causing an
unfair surge in citations in one review
period. Some commenters stated that a
mine’s POV status can be threatened by
a single inspection or a few inspections
with few citations followed by one with
a lot of citations. These commenters
stated that MSHA should not be able to
issue a POV notice based on only a few
inspections, one of which had many
citations. According to one commenter,
in these situations, posting the specific
criteria on a Web site does not warn a
mine operator that the mine’s
compliance history is approaching a
POV. In support of this position, the
commenter provided an example of a
mine operator undergoing one
inspection and receiving a smaller
number of S&S citations, followed by
another inspection within the next
several months with a much larger
number of S&S citations.
MSHA will continue the existing
policy of reviewing a mine’s compliance
history over a 12-month period of time.
MSHA believes that this provides the
best opportunity for the Agency to
evaluate whether a mine has a POV.
Under the final rule, mine operators
have the responsibility to constantly
monitor their compliance performance
and to assure that health and safety
conditions are addressed in a timely
manner. MSHA suggests that mines
receiving an inordinate number of S&S
violations over a short period of time
may need to develop a corrective action
program designed to address the root
causes of any recent increases in S&S
citations.

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Interpretation of Significant and
Substantial (S&S)
Commenters also expressed concern
about how MSHA interpreted S&S.
Many commenters emphasized that the
mine operator and MSHA inspector
often disagree. Some stated that
inexperienced or insufficiently trained
inspectors mark many citations as S&S
when there is no likelihood of an injury
or illness, and no negligence. They
stated that MSHA must clarify what
constitutes an S&S violation.
MSHA’s interpretation of what
constitutes an S&S violation is posted
on MSHA’s Web site at http://
www.msha.gov/PROGRAMS/assess/
citationsandorders.asp and is consistent
with the Federal Mine Safety and Health

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Review Commission’s definition of S&S
(Mathies Coal Co., 6 FMSHRC 1
(January 1984)). With respect to
inspector training, MSHA is constantly
updating and improving new inspector
training, journeymen training, and
supervisor training to improve
consistency in the application of S&S. In
addition, MSHA has implemented an
improved pre-assessment conferencing
process to facilitate early resolution of
enforcement disputes that relate to S&S
and other issues.
5. § 104.2(a)(7)—Other Information
Final § 104.2(a)(7), like the proposal,
provides that MSHA will consider other
information that demonstrates a serious
safety or health management problem at
the mine. It includes the information
addressed in existing §§ 104.2(b)(2)–
(b)(3) and 104.3(a)(1)–(a)(2). Under the
final rule, this other information may
include, but is not limited to, the
following:
• Evidence of the mine operator’s
lack of good faith in correcting the
problem that results in repeated S&S
violations;
• Repeated S&S violations of a
particular standard or standards related
to the same hazard;
• Knowing and willful S&S
violations;
• Citations and orders issued in
conjunction with an accident, including
orders under sections 103(j) and (k) of
the Mine Act; and
• S&S violations of health and safety
standards that contribute to the cause of
accidents and injuries.
Commenters were concerned that
MSHA’s consideration of other
information in the POV review criteria
gives the Agency almost limitless
discretion to include anything the
Agency wants to consider. Some stated
that unless the basis for this
determination is clearly defined, it is
too broad and subjective.
Some commenters also stated that
MSHA already possesses the authority
to shut down a mine for a variety of
reasons, such as an imminent danger or
an unwarrantable failure to comply, and
does not need the POV sanction to stop
operations at dangerous mine sites.
According to these commenters, in these
situations, mine operators must
immediately comply with the order and
withdraw miners until the hazard is
eliminated or the violation is abated,
though the mine operator still has the
right to challenge MSHA’s issuance of
the order. They stated that, in addition,
MSHA can seek a restraining order in
the appropriate federal district court
under section 108(a)(2) of the Mine Act
whenever the Agency believes that the

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mine operator is engaged in a pattern of
violations that constitutes a continuing
hazard to the health or safety of the
miners. For these reasons, commenters
stated that MSHA has no basis to
dispense with the notice and comment
process in a manner contrary to due
process and the statutory enforcement
scheme of the Mine Act in exercising
the Agency’s POV authority. (See
discussion on the elimination of the
PPOV and final order provisions above
in sections III.B.1. and 2. of this
preamble.)
Other commenters were concerned
that MSHA’s consideration of injuries
and illness might cause some mine
operators to not report them. These
commenters stated that MSHA should
not penalize mine operators for
reporting accidents, injuries, and
illnesses by considering them in the
Agency’s POV review. These
commenters stated that a pattern of
injuries does not mean a pattern of
violations and that injuries and illnesses
are not well correlated either
quantitatively or qualitatively with
violations. MSHA data do not reveal a
direct statistical correlation between
citations and injuries. However, as a
general matter, since passage of the
Mine Act and MSHA’s enforcement of
health and safety standards at mines,
annual mining fatalities and injuries
have steadily declined. In 1977, there
were 273 mining fatalities and 40,000
injuries. In 2011, there were 37 fatalities
and less than 9,000 injuries. Moreover,
among mines that have been placed on
PPOV status in prior years, data
generally show both a reduction in
violations and a corresponding decrease
in injuries in the year after mines were
placed on that status.
One commenter stated that including
injuries in POV determinations can only
diminish the value of the POV in
identifying truly dangerous mine
operations. Another commenter stated
that MSHA’s data are unreliable because
of underreporting and suggested that
MSHA conduct a part 50 audit as part
of a POV review. This commenter
recommended that MSHA weigh
heavily any information that shows a
mine operator failed to report or is
trying to cover up underreporting or
violations.
Consistent with MSHA’s position that
the Agency will consider a variety of
sources of information bearing on a
mine’s health and safety record when it
conducts POV evaluations, this
provision of the final rule restates the
other information that the Agency may
consider in determining whether a mine
has a POV. MSHA data and experience
show that violations of approval,

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training, or recordkeeping regulations,
for example, can significantly and
substantially contribute to health or
safety hazards, and may be a
contributing cause of an accident. This
is especially true where the mine
operator allows similar violations to
occur repeatedly. Under the final rule,
MSHA intends to exercise its
enforcement authority consistent with
Agency experience and statutory intent.
6. § 104.2(a)(8)—Mitigating
Circumstances
In this final rule, MSHA states what
it considers mitigating circumstances
and, based on its experience, provides
more explanation for how the Agency
considers mitigating circumstances in
its POV decisions.
Many commenters stated that MSHA
should provide more information about
the role that mitigating circumstances
play in the POV review process. Some
commenters responded as though
MSHA will issue a POV notice
automatically if the criteria on the
MSHA Web site are met. These
commenters stated that final § 104.3
requires the District Manager to issue a
pattern of violations notice when a mine
has a pattern of violations; however, the
discussion of mitigating circumstances
states that MSHA has discretion to
consider other factors before
determining whether a POV notice is
necessary. One commenter stated that
the mining community needs to know
more about what mitigating factors
MSHA will consider and how the
presence of mitigating factors could
remove an operation from POV status.
This commenter urged MSHA to
consider only objective measures that
demonstrate significant improvements
in mine health and safety for mitigation
purposes. This commenter was
concerned that MSHA may relieve a
mine operator from a POV
determination based on short-term
improvements without an objective
commitment to long-term change. Other
commenters stated that the proposed
rule did not prescribe a specific
procedure for MSHA consideration of
mitigating circumstances prior to
issuance of the POV notice. They
requested that MSHA provide more
information about the means for
presenting mitigating information to the
Agency and include the mechanism for
this approach in the rule.
Under the existing rule, MSHA
considers mitigating circumstances
before issuing a POV notice. Under the
final rule, this will not change; however,
MSHA will no longer provide a notice
to mine operators that a mine’s violation
history is approaching a pattern of S&S

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violations. Under the final rule, the
mine operator is responsible for
knowing if the mine’s violation history
is approaching a pattern of S&S
violations. As stated above, MSHA
exercises caution and considers all
relevant information, including any
mitigating information, before it
exercises its POV authority. There may
be extraordinary occasions when a mine
meets the POV criteria, but mitigating
circumstances make a POV notice
inappropriate. The mine operator will
have to establish mitigating
circumstances with MSHA before the
Agency issues a POV notice. The types
of mitigating circumstances that could
justify a decision to not issue a POV
notice, or to postpone the issuance of a
POV notice to reevaluate conditions in
the mine, may include, but are not
limited to, the following:
• An approved and implemented
corrective action program to address the
repeated S&S violations accompanied
by positive results in reducing S&S
violations;
• A bona fide change in mine
ownership that resulted in
demonstrated improvements in
compliance; and
• MSHA verification that the mine
has become inactive.
MSHA will continue to consider only
the enforcement record of the current
operator of the mine in determining
whether the mine meets the POV
criteria. MSHA, in coordination with
the Office of the Solicitor, when
necessary, determines whether there has
been a change in the mine operator that
warrants the start of a new violation
history at a mine. Mines that have
undergone bona fide changes in
ownership may have POV notices
postponed while MSHA determines if
the new owner is achieving measurable
improvements in compliance. Mines at
which POV enforcement actions have
been postponed due to a change to
inactive status will immediately be
subject to further POV enforcement once
the mines resume production.
Although the final rule does not
establish a specific procedure for mine
operators to present mitigating
circumstances to MSHA prior to the
issuance of a POV notice, mine
operators can present information to
support mitigating circumstances to the
District Manager at any time. (See
MSHA’s discussion of its on-line
Monthly Monitoring Tool, for
monitoring a mine’s compliance history,
under section III.B.1. of this preamble.)
Corrective Action Program
Commenters misunderstood MSHA’s
use of the term ‘‘safety and health

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5063

program’’ in the proposed rule. Several
commenters suggested that MSHA use
another term, such as remedial plan or
targeted remedial plan, to avoid
confusion. One commenter stated that
including comprehensive safety and
health management programs in the
final rule, as these programs are
typically understood, will establish a
detrimental precedent that safety and
health programs are merely compliance.
This commenter offered to support the
development of expertise in MSHA staff
so that MSHA could work cooperatively
with mine operators approaching POV
status to enable them to develop safety
and health programs, stating that
anything short of such a measure
demeans the value of a safety and health
program.
In response to comments, MSHA
clarified in its notices of public hearings
and its opening statements at the public
hearings that the Agency did not intend
that these safety and health management
programs be the same as those
referenced in the Agency’s rulemaking
on comprehensive safety and health
management programs (RIN 1219–
AB71). The public hearing notice
further stated that MSHA would
consider a safety and health
management program as a mitigating
circumstance in the pattern of violations
proposal when it: (1) Includes
measurable benchmarks for abating
specific violations that could lead to a
pattern of violations at a specific mine;
and (2) addresses hazardous conditions
at that mine. MSHA’s use of the term
‘‘safety and health program’’ in relation
to mitigating circumstances in the POV
proposal is related to corrective action
programs focused on reducing S&S
violations at a particular mine. Further,
MSHA clarified that its rulemaking on
safety and health programs is a totally
separate action, unrelated to the POV
rulemaking. MSHA also stated that
these programs referenced in the POV
rulemaking would have to be approved
by the Agency prior to the issuance of
a POV notice. To avoid any confusion,
the final rule uses only the term
‘‘corrective action program’’, it does not
address safety and health management
programs at all.
MSHA will evaluate the mine
operator’s corrective action program to
determine if it is structured so that
MSHA can determine whether the
program’s parameters are likely to result
in meaningful, measurable, and
significant reductions in S&S violations.
MSHA has guidelines for corrective
action programs on the Agency’s Web
site at http://www.msha.gov/POV/
POVsinglesource.asp under Pattern of
Violations (POV) Procedures

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Summary—2010, Appendix B—
Guidelines for Corrective Action
Programs. In general, programs must
contain concrete, meaningful measures
that can reasonably be expected to
reduce the number of S&S violations at
the mine; the measures should be
specifically tailored to the compliance
problems at the mine; and the measures
should contain achievable benchmarks
and milestones for implementation.
More specific guidance is contained in
the aforementioned document.
MSHA will consider an operator’s
effective implementation of an MSHAapproved corrective action program as a
mitigating circumstance that may justify
postponing a POV notice. Like the
Agency’s policy under the existing rule,
the program must set measurable
benchmarks for evaluating the
program’s effectiveness and show
measurable improvements in
compliance to warrant postponement of
a POV notice.
Under the final rule, if a mine
operator is close to meeting the POV
criteria, the mine operator may submit
to MSHA for approval a corrective
action program to be implemented at the
mine. If requested, MSHA will assist
mine operators in developing an
appropriate corrective action program.
7. § 104.2(b)—Specific Criteria
Final § 104.2(b), proposed as
§ 104.2(a), provides that MSHA will
post, on its Web site at http://
www.msha.gov/POV/
POVsinglesource.asp, the specific
criteria, with numerical data, that the
Agency will use to identify mines with
a pattern of S&S violations. MSHA has
determined that posting the specific
criteria on its Web site, together with
each mine’s compliance data, will allow
mine operators to monitor their
compliance records to determine if they
are approaching POV status. In addition,
mine operators, as well as other
members of the public, can monitor the
data to identify any inaccuracies and
notify MSHA of such inaccuracies. As
stated earlier, MSHA believes that it is
the mine operator’s responsibility to
constantly monitor their compliance
performance and to assure that health
and safety conditions at their mines are
proactively addressed. Access to the
specific POV criteria and the
compliance data provides mine
operators the means to evaluate their
own records and determine whether
they are approaching the criteria levels
for a POV. This access also enables mine
operators to be proactive in
implementing measures to improve
health and safety conditions at their
mines and to bring their mines into

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compliance, which will enhance the
health and safety of miners.
As stated in the proposed rule and at
the public hearings, to provide
transparency and to put operators on
notice of how the Agency will
determine if a mine has a POV, MSHA
will continue to post specific criteria on
the Agency’s Web site. The specific
criteria can be found at http://
www.msha.gov/POV/
POVScreeningCriteria2011.pdf. Further,
as stated during the rulemaking, MSHA
will seek stakeholder input when
revising POV criteria. To involve
stakeholders in the process of revising
the specific criteria, MSHA will publish
proposed changes on the Agency’s Web
site and solicit public comment. MSHA
also will notify those on the Agency’s
email subscription list that the criteria
are posted for comment. MSHA will
consider revising the criteria based on
comments.
The specific criteria are an important
element in MSHA’s POV evaluation
process. MSHA agrees with the
commenters who stated that the Agency
may from time to time need to modify
thresholds and other factors to assure
mine operators of fair and equitable
criteria that take into account different
mine sizes, mine types, and
commodities. The final rule retains the
Agency’s longstanding practice of
developing specific criteria through
policy and provides the flexibility to
adapt the specific criteria as changing
conditions and factors dictate.
MSHA considers the specific POV
criteria on its Web site to be a
discretionary statement of Agency
policy. Posting the specific POV criteria
on MSHA’s Web site promotes openness
and transparency by encouraging mine
operators to examine their own
compliance records more closely and
ascertain whether they have recurring
S&S violations. Many mine operators
are currently monitoring their
compliance performance against the
specific criteria posted on MSHA’s Web
site.
In the preamble to the proposed rule,
MSHA requested comments on how the
Agency should obtain input from
stakeholders during the development
and periodic revision of the Agency’s
specific POV criteria and the best
methods for notifying mine operators of
changes to the specific criteria. MSHA
also stated that the Agency plans to
provide any change to the specific
criteria to the public, via posting on the
Agency’s Web site, for comment before
MSHA uses it to review a mine for a
pattern of violations.
Some commenters opposed MSHA’s
proposed approach to revise the specific

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criteria. Commenters stated that
MSHA’s POV screening criteria are not
interpretive, are not a statement of
policy, and do not constitute a logical
outgrowth of the proposed rule. Instead,
they stated that these criteria constitute
rulemaking and require formal notice
and comment under the Administrative
Procedure Act (5 U.S.C. 551 et seq.).
Some stated that the specific criteria
must be clearly defined and published
in the Federal Register before the
proposal becomes final so the public
can provide meaningful comments.
These commenters said that the
proposal deprives mine operators of the
opportunity to comment, stating that
they had no basis to comment on the
specific criteria because the criteria
were not included in the proposal.
Several commenters stated that MSHA
should withdraw the proposed rule and
re-propose it with the specific criteria.
They stated that MSHA is not
establishing any criteria in the proposal,
but reserving discretion to change them
from time to time in the future without
notice and comment. Commenters
stated that the proposed rule is unclear
and confusing about how much
discretion MSHA would retain in
deciding whether a given mine is
subject to POV sanctions, and wanted to
know what, if any, objective factors
would guide that discretion.
Commenters stated that the specific
criteria should not be a moving target,
but should be fixed in the final rule so
that stakeholders will know what is
expected of them to avoid a pattern
notice. They stated further that
promising to obtain public comment
before establishing specific criteria is
not the same as putting the criteria in
the rule and going through the noticeand-comment rulemaking process.
Commenters also stated that specific
numerical criteria need to be included
in the rule so that they can comment on
the impact of the proposal, numbers of
mines affected, or costs. They stated that
the OIG specifically recommended that
MSHA seek stakeholder input on POV
screening criteria.
Some commenters requested that
MSHA include specific numbers in the
final rule for how the general criteria
will be measured. Other commenters
suggested that MSHA not use absolute
numbers as the control for the criteria—
large mines should not be compared
with small mines and vice versa; they
stated that inspection hours provides a
better basis for comparison. Some
commenters stated that there is a
disproportionately large number of
inspection hours at large unionized
mines, where miners are encouraged to
point out all violations to inspectors,

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and that the inspection history, in this
case, reflects a safer mine not a POV.
Some commenters agreed with
MSHA’s proposed approach to revise
the specific criteria. They stated that
MSHA has many years of experience
with developing POV criteria and
possesses the necessary expertise to
determine what specific criteria should
be used to identify problem mines. They
recommended that MSHA post this
information in a single location on the
Agency’s Web site so that mine
operators and other interested parties
are able to view all of the relevant
information at once by entering the
mine ID number.
After reviewing all comments, based
on Agency experience, the final rule,
like the proposal, does not include
specific POV criteria. This provides the
Agency with necessary flexibility in
establishing criteria for POV
evaluations. By retaining the specific
pattern of violations criteria as a
statement of Agency policy, as has
always been the case under the existing
regulation, the Agency has flexibility to
adjust the specific criteria, as necessary,
to accomplish its mission and to
provide relief to mine operators. Such
relief might be necessary if, for example,
the results of the application of the
specific criteria have unintended
consequences on a particular mine
sector or mine size. In this case, MSHA
might determine that the existing
specific criteria are not fairly or
properly evaluating a mine’s
compliance record for a pattern of
violations. The Agency might determine
that the existing specific criteria are no
longer an appropriate measure of
elevated risk to miners. If this were to
occur, mine operators and miners would
be unfairly impacted by inappropriate
criteria. This could also have an adverse
or punitive impact on mine operators.
MSHA understands the importance of
getting input from all of its stakeholders
whenever the Agency considers revision
of the specific criteria, and would
provide opportunity for stakeholder
input (76 FR 35801).
This aspect of the final rule is
consistent with the legislative history of
section 104(e), which stated that a
‘‘pattern does not necessarily mean a
prescribed number of violations of
predetermined standards’’ (S. Rep. No.
181, supra at 32–33). MSHA recognizes
that a certain number of violations that
might constitute a pattern at one mine
may be insufficient to trigger a pattern
at another.
MSHA considers the specific POV
criteria to be a statement of Agency
policy that is designed to provide
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making POV decisions. A mine that
meets the specific criteria’s numerical
thresholds is not automatically placed
in POV status. Rather, MSHA retains the
discretion to consider mitigating
circumstances for each individual mine
and may choose not to use the POV
sanction even if a mine meets the
specific criteria. Federal courts have
consistently held that nonbinding
statements of agency policy do not
require notice and comment rulemaking
(See, e.g., Panhandle E. Pipe Line v.
FERC, 198 F.3d 266, 269 (DC Cir. 1999);
see also Center for Auto Safety, Inc. v.
National Highway Traffic Safety
Admin., 342 F.Supp.2d 1 (D.D.C. 2004)).
As long as the agency remains free to
consider the individual facts in the
various cases that arise, then the agency
in question has not established a
legislative rule that is subject to notice
and comment (National Mining
Association v. Secretary of Labor, 589
F.3d 1368, 1371 (11th Cir. 2009)).
C. § 104.3

Issuance of Notice

Final § 104.3 simplifies the
requirements for issuing a POV notice
and is essentially unchanged from the
proposal. MSHA believes that it allows
the Agency to more effectively
implement the POV provision in a
manner consistent with legislative
intent. As stated earlier, some mines
made initial safety improvements,
however, these improvements declined
over time. MSHA’s experience and data
reveal that some mine operators who
received PPOV letters temporarily
reduced their S&S violations, but
reverted back to allowing the same
hazards to occur repeatedly without
adequately addressing the underlying
causes. MSHA believes that operators
who greatly reduced violations after
receiving a PPOV letter and maintained
this improved level of compliance are
likely to continue monitoring their own
performance under the final rule.
1. § 104.3(a) and (b)—Issuance and
Posting of POV Notice
Final § 104.3(a), like the proposal,
provides that, when a mine has a POV,
the District Manager will issue a POV
notice to the mine operator that
specifies the basis for the Agency’s
action. The District Manager will also
provide a copy of the POV notice to the
representative of miners. Final
§ 104.3(b) requires that the mine
operator post the POV notice on the
mine bulletin board and that it remain
posted until MSHA terminates the POV.
After the operator receives the POV
notice, MSHA’s web site Data Retrieval
System will list the POV notice, along

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5065

with other enforcement actions, for the
affected mine.
Some commenters stated that some of
the data MSHA uses to screen operators
for PPOV (or POV) is inaccurate, and
that mine operators should have an
opportunity to meet with MSHA to
question underlying data after being
notified of a POV. As discussed earlier,
commenters were concerned that,
without procedural safeguards and mine
operator input, MSHA could issue a
POV notice based on inaccurate data;
they thought data inaccuracies were a
common occurrence in the overloaded
MSHA database. Commenters were also
concerned that MSHA would be less
inclined to conference once the POV
notice was issued. To relieve these
concerns, some commenters suggested
that MSHA provide mine operators an
informal warning and a short period of
time to review data and demonstrate
that the underlying violations may be
invalid or otherwise flawed for purposes
of POV consideration. Commenters
stated that removing this informal step
would result in more inaccurate POV
determinations and unnecessary
expenditure of resources. Some
commenters suggested that MSHA
provide mine operators an opportunity
to present their case to the District
Manager that the mine operator (1) has,
or can implement immediately, a
corrective action program to address the
Agency’s concerns; or (2) can
demonstrate that, unknown to MSHA,
the mine operator has been taking steps
to address violations. Other commenters
opposed a warning step stating that the
threat of closure must be real for it to
be an effective deterrent.
MSHA will continue to adhere to its
policy of holding informal closeout
conferences following an inspection,
when the mine operator and the MSHA
inspector discuss citations and orders.
The operator can also request a
conference with the field office
supervisor or district manager.
In addition, in response to comments,
and to ensure that all data are accurate,
MSHA will also provide mine operators
an opportunity to meet with the district
manager for the limited purpose of
discussing discrepancies (e.g., citations
that are entered incorrectly or have not
yet been updated in MSHA’s computer
system, Commission decisions
rendered, but not yet recorded, on
contested citations, and citations issued
in error to a mine operator instead of an
independent contractor at the mine) in
the data. A mine operator may request
a meeting with the District Manager for
the sole purpose of presenting
discrepancies in MSHA data. At this
meeting, mine operators will have an

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opportunity to question the underlying
data on which the POV is based, and
provide documentation to support their
position. MSHA will make changes, as
appropriate, which could result in
rescission of the POV notice if MSHA
verifies data discrepancies and the mine
no longer meets the criteria for a POV.
The time to request, schedule, and hold
this meeting does not affect the 90-day
schedule for abatement of the POV. In
addition, consistent with existing
policy, field office supervisors and
district managers will continue to
review all violations. This would
include S&S violations issued to mine
operators with a POV.
As stated previously, mine operators
have the responsibility to monitor their
own compliance record. MSHA
encourages mine operators and
contractors to monitor their compliance
records using the POV on-line Monthly
Monitoring Tool and notify MSHA as
soon as possible if they believe any
information on the POV web database is
inaccurate. MSHA anticipates that
operators will constantly monitor their
performance using the on-line Monthly
Monitoring Tool and inform the Agency
of any discrepancies between their data
and data posted on MSHA’s Web site.
Like under the existing rule, MSHA will
correct inaccurate information after
verifying it. MSHA believes that
ongoing operator monitoring of Agency
compliance data will minimize the
potential for inaccurate POV
determinations. The District Manager
will rescind a POV notice if the Agency
determines that it was based on
inaccurate data and that the mine did
not meet the criteria for a POV.
One commenter stated that posting
the POV notice on the mine bulletin
board is necessary for informing those
most affected that their workplace
exhibits substandard health and safety
conditions so they can be attentive in
protecting themselves and their fellow
miners.
Under the final rule, mine operators
are required to post the POV notice on
the mine bulletin board and to keep it
posted until MSHA terminates the POV.
Additionally, the operator is required to
provide a copy of the POV notice to the
representative of miners.
2. § 104.3(c) and (d)—Withdrawal of
Persons From Area of Mine Affected by
Subsequent S&S Violations After
Issuance of POV Notice
Final § 104.3(c) and (d) are the same
as proposed. They restate the
requirements in the Mine Act for MSHA
actions after a POV notice is issued.
Final § 104.3(c) requires MSHA to issue
an order withdrawing all persons from

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the affected area of the mine if the
Agency finds any S&S violation within
90 days after the issuance of the POV
notice. Final § 104.3(d) provides that if
a withdrawal order is issued under
§ 104.3(c), any subsequent S&S violation
will result in an order withdrawing all
persons, except those responsible for
correcting the cited condition, from the
affected area of the mine until MSHA
determines that the violation has been
abated. Commenters stated that MSHA
must clarify that a subsequent
withdrawal order must apply only to
persons in the specific area who are
exposed to risk of harm from the cited
violation.
As stated previously, MSHA
considers 30 CFR part 104—Pattern of
Violations—as a procedural regulation
that promotes transparency. It informs
mine operators and others about the
steps MSHA will follow in
implementing section 104(e) of the Mine
Act. This final rule does not require
additional compliance by mine
operators. Rather, it places the primary
responsibility on the mine operator and
allows the mine operator to be more
proactive in eliminating hazards.
Through this more proactive approach,
mine operators will monitor their
compliance performance against MSHA
records, reconcile discrepancies, and
seek MSHA assistance in correcting
ineffective procedures, practices, and
policies. Likewise, as is existing MSHA
practice, a withdrawal order usually
will apply only to persons in the
specific area who are exposed to risk of
harm from the cited violation. MSHA,
however, has the authority to withdraw
miners whenever, in the judgement of
the inspector at the mine, there is an
imminent risk of harm to miners.
D. § 104.4 Termination of Notice
Final § 104.4 addresses the
termination of a POV notice and is
unchanged from the proposal. MSHA’s
POV Procedures Summary, posted on
MSHA’s Web site at http://
www.msha.gov/POV/
POVsinglesource.asp, includes
provisions for MSHA to conduct a
complete inspection of the entire mine
within 90 days of issuing the POV
notice.
Commenters expressed concern that,
once a POV notice is issued, it is
practically impossible to terminate,
especially for large mines. Commenters
said that it is highly unlikely that any
operation could go 90 days without an
S&S violation. One commenter pointed
out that the seasonal nature of
operations in Alaska makes it infeasible
or impossible to conduct timely followup inspections.

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Commenters also stated that MSHA
must clarify how the Agency will
handle POV status when citations or
orders that form the basis for the POV
status are vacated or reduced to nonS&S. Many commenters urged MSHA to
set up an expedited process to review
POV status if citations or orders on
which the status is based are
subsequently vacated or reduced in
severity, in settlement or by litigation,
so that the mine no longer meets the
POV criteria. Many commenters stated
that MSHA must terminate the POV
status if the mine no longer meets the
criteria for the POV status.
The requirements for termination of a
POV notice are provided in section
104(e)(3) of the Mine Act. A POV notice
will be terminated if MSHA finds no
S&S violations during an inspection of
the entire mine. Final § 104.4 merely
restates the requirements at 30 U.S.C.
814(e)(3) for terminating a pattern
notice. Final paragraph (b) is revised to
make nonsubstantive changes to clarify
that partial inspections of the mine,
within 90 days, taken together
constitute an inspection of the entire
mine.
As previously mentioned, mine
operators may challenge section 104(e)
withdrawal orders, as well as the
underlying POV designation, before the
Commission. Section 105(b)(2) of the
Mine Act provides for expedited
Commission review of requests for
temporary relief from the issuance of
POV withdrawal orders. Under
Commission procedural rules, and
subject to judges’ availability, it is
possible for a hearing to occur as early
as four days from the date of the request
for an expedited hearing. For this
reason, it is unnecessary for MSHA to
establish a similar administrative
process.
Under the statute, to be removed from
POV status, a mine must receive a
complete inspection with no S&S
violations cited. In CY 2010, CY 2011,
and the first quarter of CY 2012, MSHA
conducted 48,397 regular, complete
inspections. No S&S violations were
cited during 26,124 (54%) of these
inspections. 9,430 inspections resulted
in no violations cited at all. (Note: for
underground coal mines, for the same
period, of the 5,192 regular inspections,
1,256 (24%) resulted in no S&S
citations).
With respect to seasonal operations
that operate on an intermittent basis, the
Mine Act requires inspections for
intermittent operations. As with mines
that change to inactive status after
receipt of a POV notice, MSHA would
temporarily postpone enforcement
while the mine is inactive, but would

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resume POV enforcement once the
seasonal operation restarts production.
E. Alternatives Suggested by
Commenters
Many commenters urged MSHA to
consider a mine’s injury prevention
effectiveness as well as enforcement
performance, saying they should be
given equal weight. These commenters
stated that injury prevention is a core
value that should be MSHA’s primary
focus—how well a mine prevents
injuries—and that enforcement
performance does not equal safety.
Other commenters suggested that rates
and measures must be normalized for
mine size and type, stating that severity
measures can skew injury rates for small
mines. Some commenters suggested that
MSHA use the Safety Performance
Index (SPI), also known as the Grayson
Model, as one viable POV model that
uses injury prevention and enforcement
criteria in equal measures. It normalizes
the criteria and provides a holistic view
(i.e., analysis of a whole system rather
than only its individual components) of
a mine’s safety performance so that it is
predictive in nature.
MSHA reviewed the SPI model when
the Agency was considering changes to
the specific criteria used in its POV
procedures summary which provides
the basis for the Agency’s on-line
Monthly Monitoring Tool. MSHA found
that the model places a high degree of
emphasis on accident and injury data
reported by the mine operators, more
than MSHA believed was appropriate.
MSHA’s existing POV criteria, however,
contain elements similar to some of
those in the SPI model (i.e., normalized
S&S citations and orders and injury
severity measures). As previously stated
in this preamble, under this final rule,
mine operators will have the
opportunity to comment on any future
POV criteria that MSHA posts for
comment on its Web site at http://
www.msha.gov/POV/
POVsinglesource.asp.

IV. Regulatory Economic Analysis
MSHA has not prepared a separate
regulatory economic analysis for this
rulemaking. Rather, the analysis is
presented below.
A. Executive Order 12866: Regulatory
Planning and Review; and Executive
Order 13563: Improving Regulation and
Regulatory Review
Under Executive Order (E.O.) 12866,
the Agency must determine whether a
regulatory action is ‘‘significant’’ and
subject to review by the Office of
Management and Budget (OMB).
MSHA has determined that this final
rule will not have an annual effect of
$100 million or more on the economy,
and is not an economically ‘‘significant
regulatory action’’ pursuant to section
3(f) of E.O. 12866. MSHA used a 10-year
analysis period and a 7 percent discount
rate to calculate $6.7 million in
annualized net benefits ($12.6 million
in annualized benefits minus $5.9
million in annualized costs). However,
OMB has determined that the final rule
is a ‘‘significant’’ regulatory action
because it will likely raise novel legal or
policy issues.
Executive Order 13563 directs
agencies to assess all costs and benefits
of available regulatory alternatives and,
if regulation is necessary, to select
regulatory approaches that maximize
net benefits (including potential
economic, environmental, public health
and safety effects, distributive impacts,
and equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits,
reducing costs, harmonizing rules, and
promoting flexibility to minimize
burden. MSHA has determined that this
rule does not add a significant
cumulative effect. The rule imposes
requirements only on mines that have
not complied with existing MSHA
standards. The analysis identifies costs
for mine operators who voluntarily
choose to routinely monitor their
citation data and undertake corrective

5067

action programs to prevent being placed
on a POV.
Commenters stated that the proposed
rule failed to consider the interplay
between the POV rule and other Agency
rules as required by E.O. 13563, which
requires agencies to regulate industry in
the least burdensome manner and to
take into account the costs of
cumulative regulations. Commenters
stated that the cumulative effect of
changes to other rules, such as
respirable dust, examinations, and rock
dust, on the POV regulation, will likely
cause an increase in the numbers of S&S
citations and, consequently, could result
in more mines meeting the criteria for
a POV notice. In response to
commenters’ concerns, MSHA clarifies
that this final rule will achieve the
legislative intent and impact only those
mines that show a disregard for miners’
health and safety. This rule does not
add to the number of S&S citations.
Mines can avoid costs associated with
POV status by complying with MSHA’s
health and safety standards.
B. Industry Profile and Population at
Risk
The final rule applies to all mines in
the United States. MSHA divides the
mining industry into two major sectors
based on commodity: (1) coal mines and
(2) metal and nonmetal mines. Each
sector is further divided by type of
operation, e.g., underground mines or
surface mines. The Agency maintains
data on the number of mines and on
mining employment by mine type and
size. MSHA also collects data on the
number of independent contractor firms
and their employees providing mining
related services. Each independent
contractor is issued one MSHA
contractor identification number, but
may work at any mine.
In 2010, there were 14,283 mines with
employees. Table 1 presents the number
of mines in 2010 by type and size of
mine.

TABLE 1—2010 NUMBER OF MINES, BY TYPE OF MINE AND EMPLOYMENT SIZE GROUP
Employment size group
Mine size

Total

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1–19

20–500

501+

Underground Coal ...........................................................................................
Surface Coal ....................................................................................................
Underground M/NM .........................................................................................
Surface M/NM ..................................................................................................

168
901
110
10,837

383
475
132
1,231

15
4
6
21

566
1,380
248
12,089

Total ..........................................................................................................

12,016

2,221

46

14,283

The estimated value of coal produced
in U.S. coal mines in 2010 was $36.2

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billion: $18.8 billion from underground
coal and $17.4 billion from surface coal.

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The estimated value of coal production
was calculated from the amount of coal

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produced and the average price per ton.
MSHA obtained the coal production
data from mine operator reports to
MSHA under 30 CFR part 50 and the
price per ton for coal from the U.S.
Department of Energy (DOE), Energy
Information Administration (EIA),
Annual Coal Report 2010, November
2011, Table 28.

The value of the U.S. mining
industry’s metal and nonmetal (M/NM)
output in 2010 was estimated to be
approximately $64.0 billion. Metal
mining contributed an estimated $29.1
billion to the total while the nonmetal
mining sector contributed an estimated
$34.9 billion. The values of production
estimates are from the U.S. Department

of the Interior (DOI), U.S. Geological
Survey (USGS), Mineral Commodity
Summaries 2011, January 2011, page 8.
The combined value of production
from all U.S. mines in 2010 was $100.2
billion. Table 2 presents the estimated
revenues for all mines by size of mine.

TABLE 2—2010 REVENUES AT ALL MINES BY EMPLOYMENT SIZE GROUP
Revenues—
coal mines
(millions)

Size of mine

Revenues—
MNM mines
(millions)

Total revenues
(millions)

1–19 Employees ..........................................................................................................................
20–500 Employees ......................................................................................................................
501+ Employees ..........................................................................................................................

$224
15,100
20,900

$14,800
43,300
5,900

$15,000
58,400
26,800

Total* ....................................................................................................................................

36,200

64,000

100,200

* Discrepancies are due to rounding.

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C. Benefits
This final rule provides MSHA a more
effective use of its POV tool to ensure
that operators improve their compliance
with existing health and safety
standards. Based on 2010 mine
employment data, effective use of this
enforcement tool will provide
improvement in the conditions for
319,247 miners. These workers are
found in underground coal mines
(51,228), surface coal mines (70,178),
underground metal/nonmetal mines
(22,930), and surface metal/nonmetal
mines (174,911).
The Agency used its experience under
the existing POV rule to estimate
benefits under the final rule.
Specifically, the Agency used safety
results derived after PPOV notices were
issued to mine operators. MSHA’s data
reveal that improvements declined over
time at about a fifth of the mines that
received PPOV notices, based on
MSHA’s data over the last four years.
Beginning in June 2007 through
September 2009, MSHA conducted
seven cycles of PPOV evaluations, on an
average of every 6 to 9 months. In each
cycle, eight to 20 of all mines met the
criteria for issuance of a PPOV. During
that period, MSHA sent 68 PPOV letters
to 62 mine operators (six mine operators
received more than one notification).
After receiving the PPOV, 94 percent of
the mines that remained in operation to
the next evaluation reduced the rate of
S&S citations and orders by at least 30
percent, and 77 percent of the mines
reduced the rate of S&S citations and
orders to levels at or below the national
average for similar mines. These
improvements declined over time at
some mines. Compliance at 21 percent
(13/62 = 0.21) of the 62 mines that

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received PPOV letters deteriorated
enough over approximately a 24-month
period to warrant a second PPOV letter.
Six of these mines were actually sent a
second PPOV letter, while the other
seven (of the 13) could have received a
second letter but did not, generally due
to mitigating circumstances.
In the proposed rule, MSHA
estimated that 50 mines would submit
corrective action programs in the first
year. After reviewing public comments
on the proposed rule, the Agency
performed a POV analysis to review the
12-month violation history of all active
mines for each of the five months from
September 2011 to January 2012. The
analysis used the existing PPOV
screening criteria except for the final
order criteria. Of the over 14,000 mines
under MSHA jurisdiction, MSHA
identified 313 mines that either met all
of the initial screening criteria or all but
one of the initial screening criteria.
MSHA believes that most mine
operators in this situation will submit
and implement corrective action
programs. MSHA believes that almost
90 percent (or 275) of these mines will
submit corrective action programs in the
first year under the final rule. MSHA
believes operators will improve
compliance over time but lacks any
historical basis for a data driven
estimate. Rather, the Agency selected a
10-percent reduction each year as a
reasonable assumption based on its data
and experience with the issuance of
PPOV notices under the existing
regulation. The costs for the corrective
action programs include this 10-percent
reduction each year in operators
submitting corrective action programs.
Under the final rule, operators can
submit corrective action programs as
evidence of mitigating circumstances to

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demonstrate their commitment to
improve health and safety at their
mines. Mines who submit effective
corrective action programs will reduce
the number of S&S violations, thereby
reducing the probability of injuries and
of being placed on a POV. MSHA
reviewed the five 12-month periods
ending on September 30, 2011; October
31, 2011; November 30, 2011; December
31, 2011; and January 31, 2012, which
resulted in an average of 12 mines that
met all of the POV screening criteria.
Based on this data, MSHA projects that
12 mines will meet all of the POV
criteria in the first year under the final
rule. As previously stated, of the 90
percent or 11 mines that implement a
corrective action program, MSHA
estimates that 80 percent will
successfully reduce S&S violations.
Therefore, 20 percent or two of the
mines that implement a corrective
action program will be issued a POV
notice, primarily because they did not
successfully implement a corrective
action program or the corrective action
program did not achieve the results
intended in reduced S&S citations to
avoid a POV. MSHA further estimates
that 10 percent or one mine will not
have implemented a corrective action
program and will be issued a POV
notice. Therefore, MSHA estimates that
a total of three mines will be issued
POV notices annually.
MSHA estimated the impact that the
final mitigating circumstances provision
in the final rule (including the
opportunity for mine operators to
submit corrective action programs) will
have on the number of nonfatal injuries
at mines. MSHA determined that the 62
mines, which received PPOV letters
from June 2007 through September

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Federal Register / Vol. 78, No. 15 / Wednesday, January 23, 2013 / Rules and Regulations
2009, experienced 11 total nonfatal
injuries during the year prior to
receiving the PPOV letter and eight total
nonfatal injuries during the year after
receiving the PPOV letter, for an overall
reduction in nonfatal injuries of 30
percent per year.
One commenter stated that MSHA
had provided no rational basis for its
estimate that the proposed rule would
reduce the number of nonfatal injuries
per mine by an average of three per year.
In response to the comment, MSHA’s
estimate for reduced non-fatal injuries
per year in the proposed rule was based
on Agency experience under the
existing rule. However, MSHA has
reduced the estimate of non-fatal
injuries avoided per year from three in
the proposed rule to one in the final
rule.
MSHA reviewed 10 years of accident
data for all mines using the Agency’s
Open Government Initiative Accident
Injuries dataset at http://www.msha.gov/
OpenGovernmentData/DataSets/
Accidents.zip. MSHA examined data
from 2002 to 2011. For the mines with
accidents, MSHA found that the average
number of nonfatal, non-permanently
disabling injuries with lost time was 3.7
annually per mine. Using an average of
3.7 injuries per mine annually and
MSHA’s experience with PPOV (roughly
a 30 percent reduction in non-fatal
injuries), MSHA reduced its estimate for
nonfatal injuries avoided at mines that
successfully implement an effective,
MSHA-approved, corrective action
program, from three to one per year.
MSHA has included a more
conservative value in the final rule. It is
likely that operators who include
measurable benchmarks for abating
specific violations to address hazardous
conditions in the MSHA-approved
corrective action programs will achieve
more effective systemic results than
those achieved under the existing rule.
As mentioned previously in the
preamble, MSHA believes that the POV
will be a more effective deterrent to
operators by encouraging them to
continually evaluate their compliance
performance and respond appropriately.
MSHA does not believe that it has a
reliable basis on which to quantify a
reduction in fatalities or disabling
injuries. MSHA believes, however, that
the implementation of an MSHAapproved corrective action program will
reduce fatalities and disabling injuries.
Although MSHA has not quantified a
reduction in injuries at the three mines
estimated to be placed on a POV each
year, the Agency believes that there will
likely be injury reductions at these
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In the first year following receipt of
the PPOV, mines receiving PPOV letters
showed reductions in S&S violations
and injuries. Unfortunately, some mines
failed to sustain these improvements in
the second year. Of the 62 mines
receiving PPOV letters from June 2007
through September 2009, 49 mines had
two full years of data following receipt
of the PPOV letter. Of these 49 mines,
19 (39%) experienced an increase in the
number of injuries in the second year
following receipt of the PPOV letter
compared to the first.
MSHA expects that, under the final
rule, more mines will sustain
improvements in health and safety.
MSHA expects that operators that
proactively implement effective MSHAapproved corrective action programs
will have health and safety systems that
allow them to continuously monitor
hazardous conditions and sustain
improvements. Mines that meet the
conditions for termination of a POV will
have increased incentive to remain off
(see the cost analysis) and will likely
implement continuing, proactive
measures to prevent S&S violations.
MSHA based its estimates of the
monetary values for the benefits
associated with the final rule on the
work of Viscusi and Aldy (2003).
Viscusi and Aldy’s work on willingnessto-pay is widely recognized and
accepted by the Department of Labor
and other federal agencies. Viscusi and
Aldy conducted an analysis of studies
that use a willingness-to-pay
methodology to estimate the value of
life-saving programs (i.e., meta-analysis)
and found that each fatality avoided was
valued at approximately $7 million and
each lost work-day injury was
approximately $50,000 in 2000 dollars.
Using the Gross Domestic Product (GDP)
Deflator (U.S. Bureau of Economic
Analysis, 2010), this yields an estimate
of $8.7 million for each fatality avoided
and $62,000 for each lost work-day
injury avoided in 2009 dollars. As a
conservative estimate, MSHA has used
the lost work-day injury value for all
nonfatal injuries as there is insufficient
data to separately estimate permanently
disabling injuries.
MSHA recognizes that willingness-topay estimates involve some uncertainty
and imprecision. Although MSHA is
using the Viscusi and Aldy (2003) study
as the basis for monetizing the expected
benefits of the final rule, the Agency
does so with several reservations, given
the methodological difficulties in
estimating the compensating wage
differentials (see Hintermann, Alberini,
and Markandya, 2008). Furthermore,
these estimates pooled across different
industries may not capture the unique

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5069

circumstances faced by miners. For
example, some have suggested that the
models be disaggregated to account for
different levels of risk, as might occur in
coal mining (see Sunstein, 2004). In
addition, miners may have few options
of alternative employers and, in some
cases, only one employer (nearmonopsony or monopsony) that may
depress wages below those in a more
competitive labor market.
MSHA estimates a reduction of 1,796
injuries over the 10-year period. This
value is based on the estimated
prevention of 275 nonfatal injuries in
year one (first year 275 mines with
corrective action programs times 1
injury reduction per mine) and a 10
percent reduction in mines submitting
programs and corresponding reduction
in non-fatal injuries in each successive
year. This reduction results in an
estimated 107 mine operators
submitting programs in the 10th year.
The monetized benefits are calculated
by multiplying the reduction in each
year by $62,000 per lost work-day
injury. This reduction in injuries, due to
this final rule, will result in a 10-year
monetary benefit of $111.4 million
which when annualized at 7 percent
equals $12.6 million. MSHA believes
that this is a low estimate for the total
benefits of the final rule as no monetary
benefit for potential avoided fatalities
was included and avoided injuries were
all assumed to be less serious than a
disabling injury.
D. Compliance Costs
MSHA estimates this rule will result
in total compliance costs of $54.4
million over 10 years. The total 10-year
estimated costs are comprised of costs
for monitoring compliance or
enforcement data ($11.6 million), costs
for developing and submitting
corrective action programs ($20.1
million), and lost production when a
POV and withdrawal order are issued
($22.7 million). The costs, when
annualized at 7 percent, are $5.9
million. These costs are described
below. MSHA’s estimates do not
include the cost of compliance with
MSHA’s health or safety standards.
Although these costs can be substantial,
they are addressed in rulemakings
related to MSHA’s existing health and
safety standards, and are not included
in this analysis.
The final rule mirrors the statutory
provision in section 104(e) of the Mine
Act for issuing a POV notice. Final
§ 104.3(c) provides that MSHA will
issue an order withdrawing all persons
from the affected area of the mine if any
S&S violation is found within 90 days
after the issuance of a POV notice. No

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one will be allowed to enter the area
affected by the violation until the
condition has been abated, except for
those persons who must enter the
affected area to correct the violation.
Under final rule § 104.3(d), any
subsequent S&S violation will also
result in a withdrawal order.
The Congress intended that the POV
tool be used to cause operators of unsafe
mines to bring them into compliance,
even if this meant shutting down
production. Withdrawal orders issued
under the final rule can stop production
until the condition has been abated. The
threat of a withdrawal order provides a
strong incentive for mine operators to
ensure that S&S violations do not recur.
MSHA expects that, rather than risking
a POV and the possibility of a closure,
mine operators will monitor their
compliance record against the POV
criteria using the on-line Monthly
Monitoring Tool on the Agency’s Web
site. MSHA estimates that it will take a
supervisor an average of 0.08 hour (5
minutes) each month to monitor a
mine’s performance using the Agency’s
on-line Monthly Monitoring Tool.
Commenters both supported and
disagreed with the time, ease of use, and
frequency associated with monitoring
the on-line Monthly Monitoring Tool
referenced in the proposed rule.
Commenters stated that MSHA’s
estimate of 5 minutes to monitor the
Web data was too low. Besides the time
required for monitoring, commenters
also stated concern about the ease of use
of MSHA’s on-line Monthly Monitoring
Tool.
After reviewing the comments, MSHA
has determined that, due to the broad
range in mine sizes and types affected
by this rule, an average of 5 minutes per
month is an appropriate time for an
operator to monitor a mine’s compliance
performance. Some large mines may
take much longer; many mine operators
may monitor the on-line Monthly
Monitoring Tool only a few times a year
and incur lower costs. Mine operators
may also request this information
directly from MSHA. As support for its
estimates, MSHA believes that its online Monthly Monitoring Tool can be
easily used by mine operators and
without the need for special skills or
training.
MSHA calculated the average
supervisory wage, including benefits,
for all mining in 2010 at $81.27 per
hour. MSHA estimates that the yearly
cost for all mine operators to monitor
their performance will be approximately
$1.1 million (14,283 mines × 0.08 hours
(5 minutes) per month × 12 months per
year × $81.27 per hour).

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With respect to compliance
performance, MSHA’s experience
reveals that the vast majority of mines
operate substantially in compliance
with the Mine Act. As mentioned above,
MSHA identified 313 mines that either
met all or all but one of the initial
screening criteria. MSHA projects that
almost 90 percent of these 313 mines (or
275) will submit corrective action
programs in the first year under the final
rule. Under the final rule, MSHA
projects that these 275 operators, after
monitoring their compliance
performance, will submit corrective
action programs to MSHA as evidence
of mitigating circumstances to
demonstrate their commitment to
improve their compliance performance.
MSHA estimates that mine operators
will improve their compliance
performance and the number of
corrective action programs will
gradually decrease. After the final rule
becomes effective, MSHA projects
increased compliance and applied a 10
percent reduction per year to the
number of mines submitting corrective
action programs. This results in an
estimated 107 submissions in year 10.
MSHA estimates that, on average, it
will take a total of 128 hours of a
supervisor’s time to develop an effective
corrective action program with
meaningful and measurable
benchmarks, obtain the Agency’s
approval of the program, and implement
the program. The 128 hours of
supervisory time is comprised of 80
hours for development of the program,
8 hours for submittal and approval, and
40 hours for implementation. MSHA
estimates that 8 hours of miners’ time
will be associated with implementation
of the program. MSHA re-evaluated and
reduced the estimated hours based on
public comments. The cost for any
copying and mailing of the corrective
action program documents and
revisions will be about $100.
The final rule applies to all mines.
Because underground coal mines
generally receive more S&S violations
(50% of all S&S violations in 2011) than
other types of mines, MSHA projects
that the final rule will affect
underground coal mines more than any
other mining sector. From June 2007
through November 2011, underground
coal mine operators received nearly 80
percent of the PPOV letters. MSHA used
the 2010 underground coal mine hourly
wage rates, including benefits, of $84.69
for a supervisor and $36.92 for a miner
to estimate the corrective action
program costs.
MSHA received a public comment
that individual mines had different
wage rates. MSHA recognizes that

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wages, and therefore costs, will vary
across mines, with some higher and
some lower than the average. This
evaluation uses average underground
coal mine wage rates to estimate the
overall costs. Since hourly wage rates in
underground coal mining are higher
than those in surface coal and metal/
nonmetal mining, MSHA believes this
approach may overestimate the costs.
In the final rule, MSHA clarified that
the corrective action programs that mine
operators may submit to MSHA for
consideration as mitigating
circumstances will not need to be
comprehensive in nature. The corrective
action programs referenced in the final
rule need to cover only health and
safety issues reflected in the citations
and orders that result in a POV. The
costs related to the proposed rule were
based on a comprehensive safety and
health program, which would be more
extensive and address all health and
safety issues at the mine and involve
more extensive miner participation to
develop. With this clarification, MSHA
estimates that the costs to develop the
corrective action program will be
$11,200, as opposed to $22,100 in the
proposed rule. The revised average cost
to develop and implement an approved
corrective action program at a mine will
be approximately $11,200 ((128 hours of
a supervisor’s time × $84.69 per hour)
+ (8 hours of miners’ time × $36.92 per
hour) + $100). MSHA anticipates that
the cost to mine operators developing
and implementing an MSHA-approved
corrective action program will be
approximately $20.1 million over 10
years (1,796 mines develop and
implement program × $11,200 per
mine).
Several commenters provided
estimates of $14,000–$44,000 per hour
of shutdown at large mines. These
commenters suggested that shutdowns
would be from 4 hours to 2 days and the
number of citations could raise costs by
between $3.5 and $7 million per year.
MSHA does not have an historical basis
from which to estimate the potential
costs that will be incurred by a mine on
POV. MSHA believes that a reasonable
estimate of shutdown costs is the
potential production lost when miners
are withdrawn while the mine operator
takes the necessary actions to correct the
health and safety violations. Lost
revenue due to the withdrawal orders
will vary considerably.
As noted above, MSHA expects that
the final rule will affect underground
coal mining more than any other mining
sector. MSHA, therefore, used
underground coal mine revenue to
estimate potential production losses. In
2010, 566 underground coal mines

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generated an estimated $18.8 billion in
revenue resulting in an average of
approximately $33.2 million per mine.
Average underground coal mine
revenue per day is estimated at
$151,000 ($33.2 million/220 work days).
The majority of the S&S violations
issued in underground coal mines are
abated immediately, or within hours,
and have no impact on production. A
smaller percentage of violations may
take an extended period of time and will
impact production. Based on MSHA
experience, the Agency estimates an
average of 5 days lost production for a
mine on POV. MSHA estimates the cost
of lost production at $755,000 ($151,000
lost revenue per day × 5 days). Based on
the 3 mines per year that MSHA
estimates will be placed on a POV, the
total annual lost revenue is estimated at
$2.3 million. Some mines may incur
greater than average losses while others
may incur less than average losses. The
small number of large mines relative to
the number of small mines would result
in a lower overall cost than those
suggested by commenters.
The rule does not require that every
S&S violation result in a shutdown of
the entire mine. Only miners from the
affected area are withdrawn.
Withdrawal of miners does not always
result in a loss of production.
Since the average revenue per
underground coal mine ($33.2 million)
is significantly higher than the average
revenue produced by all mines ($7.0
million), MSHA believes this approach
may overstate the estimated costs.
E. Net Benefits
Under the Mine Act, MSHA is not
required to use estimated net benefits as
the basis for its decision to promulgate
a rule. Based on the estimated
prevention of 1,796 nonfatal injuries
over 10 years, MSHA estimates that the
final rule will result in annualized (7%)
monetized benefits of $12.6 million. The
10-year annualized (7%) costs are $5.9
million. The net benefit is
approximately $6.7 million per year.

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V. Feasibility
MSHA has concluded that the
requirements of the pattern of violations
final rule are technologically and
economically feasible.
A. Technological Feasibility
MSHA concludes that this final rule
is technologically feasible because it is
not technology-forcing. In order to avoid
a POV, mine operators will have to
comply with existing MSHA health and
safety standards, which have previously
been determined to be technologically
feasible.

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B. Economic Feasibility
MSHA also concludes that this final
rule is economically feasible because
mine operators can avoid the expenses
of being placed on a POV by complying
with MSHA’s existing health and safety
standards, all of which have previously
been found to be economically feasible.
For those mine operators who are in
danger of a POV, MSHA will consider
the implementation of an approved
corrective action program, among other
factors, as a mitigating circumstance.
MSHA expects about three mines per
year will incur the potential expenses
associated with closures while on a
POV.
MSHA has traditionally used a
revenue screening test—whether the
yearly compliance costs of a regulation
are less than one percent of revenues—
to establish presumptively that
compliance with the regulation is
economically feasible for the mining
community. Based on this test, MSHA
has concluded that the requirements of
the final rule are economically feasible.
The first year compliance cost to mine
operators is the highest year at $6.5
million. This is insignificant compared
to total annual revenue of $100.2 billion
for the mining industry (i.e., costs are
significantly less than one percent).
Each year beyond the first year has
lower total costs and, therefore, even
less economic impact. Even if all of the
costs were borne by the underground
coal industry, the estimated $6.5 million
first year cost of the final rule is about
0.03 percent of the underground coal
industry’s 2010 revenue of $18.8 billion.
MSHA, therefore, concludes that
compliance with the provisions of the
final rule will be economically feasible
for the mining industry.
VI. Regulatory Flexibility Act and
Small Business Regulatory Enforcement
Fairness Act
Pursuant to the Regulatory Flexibility
Act (RFA) of 1980, as amended by the
Small Business Regulatory Enforcement
Fairness Act (SBREFA), MSHA has
analyzed the impact of the final rule on
small businesses. Based on that
analysis, MSHA has notified the Chief
Counsel for Advocacy, Small Business
Administration (SBA), and made the
certification under the RFA at 5 U.S.C.
605(b) that the final rule will not have
a significant economic impact on a
substantial number of small entities.
The factual basis for this certification is
presented below.
A. Definition of a Small Mine
Under the RFA, in analyzing the
impact of the final rule on small

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5071

entities, MSHA must use the SBA
definition for a small entity or, after
consultation with the SBA Office of
Advocacy, establish an alternative
definition for the mining industry by
publishing that definition in the Federal
Register for notice and comment. MSHA
has not taken such an action and is
required to use the SBA definition. The
SBA defines a small entity in the mining
industry as an establishment with 500
or fewer employees.
In addition to examining small
entities as defined by SBA, MSHA has
also looked at the impact of this final
rule on mines with fewer than 20
employees, which MSHA and the
mining community have traditionally
referred to as small mines. These small
mines differ from larger mines not only
in the number of employees, but also in
economies of scale in material
produced, in the type and amount of
production equipment, and in supply
inventory. The costs of complying with
the final rule and the impact of the final
rule on small mines will also be
different. It is for this reason that small
mines are of special concern to MSHA.
MSHA concludes that it can certify
that the final rule will not have a
significant economic impact on a
substantial number of small entities that
will be covered by this final rule. The
Agency has determined that this is the
case both for mines with fewer than 20
employees and for mines with 500 or
fewer employees.
B. Factual Basis for Certification
Mine operators can avoid the
expenses of being placed on a POV by
complying with existing MSHA health
and safety standards. Under the final
rule, MSHA may consider the
implementation of a corrective action
program, coupled with improved
compliance levels, as a mitigating
circumstance for those mine operators
who are subject to being placed on a
POV. MSHA expects few mines, if any,
will choose to incur the potential
expenses associated with closures under
a POV.
MSHA initially evaluates the impacts
on small entities by comparing the
estimated compliance costs of a rule for
small entities in the sector affected by
the rule to the estimated revenues for
the affected sector. When estimated
compliance costs are less than one
percent of the estimated revenues, the
Agency believes it is generally
appropriate to conclude that there is no
significant economic impact on a
substantial number of small entities.
When estimated compliance costs
exceed one percent of revenues, MSHA
investigates whether a further analysis

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is required. Since it was not possible to
accurately project the distribution of
mines that will incur the estimated $6.5
million to comply with the final rule by

commodity and size, MSHA examined
the impact using several alternative
assumptions as a sensitivity or
threshold analysis.

If the total estimated compliance cost
of $6.5 million were incurred by small
mines, the impact would be as
summarized below.
Number of
mines

Small mine group
MSHA Definition (1–19 employees) ............................................................................................
SBA Definition (≤ 500 employees) ..............................................................................................

The final rule, therefore, will not have
a significant economic impact on a
substantial number of small mining
operations.
One commenter stated that the
average cost of the rule, as calculated by
MSHA for the typical mine, would
likely put some small mines, especially
placer gold mines, out of business. The
cost for such small mines, which
typically employ one to three miners, is
likely to be less than the average cost
that MSHA calculated for an averagesized small mine. For example, a
corrective action program would require
fewer hours to develop and implement.
Accordingly, MSHA has certified that
the final rule will not have a significant
economic impact on a substantial
number of small entities.

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VII. Paperwork Reduction Act of 1995
A. Summary
This final rule contains a collectionof-information requirement subject to
review and approval by OMB under the
Paperwork Reduction Act (PRA).
MSHA estimates that under the final
rule approximately 275 mines will
develop and implement MSHAapproved corrective action programs in
the first year. MSHA believes this
number will decrease by 10 percent in
each subsequent year. The average
number of mines that will develop and
implement MSHA-approved corrective
action programs per year over 3 years is
249 ((275 + 248 + 223)/3). The
development and MSHA approval of a
corrective action program will impose
information collection requirements
related to mitigating circumstances
under final § 104.2(a)(8).
MSHA expects that developing such a
program with meaningful and
measurable benchmarks will take about
128 hours of a supervisor’s time and 8
hours of miners’ time. Costs for copying
and mailing the program and revisions
are estimated to be $100 per program.
The burden of developing and
implementing an approved corrective
action program is 136 hours per mine
(128 + 8) plus an additional cost of $100
per mine for copying and mailing.
Burden Hours:

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• Supervisors: 249 mines × 128 hr/
mine = 31,872 hr
• Miners: 249 mines × 8 hr/mine =
1,992 hr
Burden Hour Costs:
• 31,872 hr × $84.69/hr = $2,699,240
• 1,992 hr × $36.92/hr = $73,545
Copying and Mailing Costs:
• 249 mines × $100/mine = $24,900
Total Burden Cost: $2,797,685.
B. Procedural Details
The information collection package
for this final rule has been submitted to
OMB for review under 44 U.S.C. 3504(h)
of the Paperwork Reduction Act of 1995,
as amended (44 U.S.C. 3501 et seq.).
A Federal agency generally cannot
conduct or sponsor a collection of
information, and the public is generally
not required to respond to an
information collection, unless it is
approved by the OMB under the PRA
and displays a currently valid OMB
Control Number. In addition,
notwithstanding any other provisions of
law, no person shall generally be subject
to penalty for failing to comply with a
collection of information if the
collection of information does not
display a valid OMB Control Number.
See 5 CFR 1320.5(a) and 1320.6.
The Department has submitted the
information collections contained in
this final rule for review under the PRA
to the OMB. The Department will
publish an additional Notice to
announce OMB’s action on the request
and when the information collection
requirements will take effect. The
regulated community is not required to
respond to any collection of information
unless it displays a current, valid, OMB
control number. MSHA displays the
OMB control numbers for the
information collection requirements in
its regulations in 30 CFR part 3.
VIII. Other Regulatory Considerations
A. The Unfunded Mandates Reform Act
of 1995
MSHA has reviewed the final rule
under the Unfunded Mandates Reform
Act of 1995 (2 U.S.C. 1501 et seq.).
MSHA has determined that this final
rule will not include any federal

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12,016
14,237

Revenue
(millions)

Cost as
percent of
revenue

$15,000
73,400

0.04
0.01

mandate that may result in increased
expenditures by State, local, or tribal
governments; nor will it increase private
sector expenditures by more than $100
million (adjusted for inflation) in any
one year or significantly or uniquely
affect small governments. Accordingly,
the Unfunded Mandates Reform Act of
1995 requires no further Agency action
or analysis.
B. Executive Order 13132: Federalism
This final rule will not have
federalism implications because it will
not have substantial direct effects on the
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government. Accordingly,
under E.O. 13132, no further Agency
action or analysis is required.
C. The Treasury and General
Government Appropriations Act of
1999: Assessment of Federal
Regulations and Policies on Families
Section 654 of the Treasury and
General Government Appropriations
Act of 1999 (5 U.S.C. 601 note) requires
agencies to assess the impact of Agency
action on family well-being. MSHA has
determined that this final rule will have
no effect on family stability or safety,
marital commitment, parental rights and
authority, or income or poverty of
families and children. This final rule
impacts only the mining industry.
Accordingly, MSHA certifies that this
final rule will not impact family wellbeing.
One commenter stated that if mines
are put out of business because they
cannot pay MSHA fines, then lack of
jobs would put families and children
into poverty. As explained above,
MSHA has concluded that compliance
with the provisions of the final rule will
be economically feasible for the mining
industry. This final rule will not impose
additional compliance costs on the
mining industry, thus, it will not put
mines out of business.

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D. Executive Order 12630: Government
Actions and Interference With
Constitutionally Protected Property
Rights
The final rule will not implement a
policy with takings implications.
Accordingly, under E.O. 12630, no
further Agency action or analysis is
required.
E. Executive Order 12988: Civil Justice
Reform
This final rule was written to provide
a clear legal standard for affected
conduct and was carefully reviewed to
eliminate drafting errors and
ambiguities, so as to minimize litigation
and undue burden on the Federal court
system. Accordingly, this final rule will
meet the applicable standards provided
in section 3 of E.O. 12988, Civil Justice
Reform.
F. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
This final rule will have no adverse
impact on children. Accordingly, under
E.O. 13045, no further Agency action or
analysis is required.

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G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This final rule will not have tribal
implications because it will not have
substantial direct effects on one or more
Indian tribes, on the relationship
between the Federal government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal government and Indian tribes.
Accordingly, under E.O. 13175, no
further Agency action or analysis is
required.
One commenter asserted that the rule
could have impacts on Alaska Regional
and Village Corporations that have
royalty agreements with mining
companies. Within E.O. 13175
guidelines, effects on royalties are not
considered a direct effect of the rule
and, therefore, they are not included.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
Executive Order 13211 requires
agencies to publish a statement of
energy effects when a rule has a
significant energy action (i.e., it
adversely affects energy supply,
distribution, or use). MSHA has
reviewed this final rule for its energy
effects because the final rule applies to
the coal mining sector. Even if the entire
annualized cost of this final rule of
approximately $5.9 million were

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incurred by the coal mining industry,
MSHA has concluded that, relative to
annual coal mining industry revenues of
$36.2 billion in 2010, it is not a
significant energy action because it is
not likely to have a significant adverse
affect on the supply, distribution, or use
of energy. Accordingly, under this
analysis, no further Agency action or
analysis is required.
I. Executive Order 13272: Proper
Consideration of Small Entities in
Agency Rulemaking
MSHA has reviewed the final rule to
assess and take appropriate account of
its potential impact on small businesses,
small governmental jurisdictions, and
small organizations. MSHA has
determined and certified that the final
rule will not have a significant
economic impact on a substantial
number of small entities.
IX. References
Hintermann, B., A. Alberini, and A.
Markandya (2010). ‘‘Estimating the Value
of Safety with Labor Market Data: Are the
Results Trustworthy?’’ Applied Economics,
42(9):1085–1100. Published electronically
in July 2008.
Sunstein, C. (2004). ‘‘Valuing Life: A Plea for
Disaggregation.’’ Duke Law Journal,
54(November 2004):385–445.
U.S. Bureau of Economic Analysis (2010).
‘‘National Income and Product Accounts
Table: Table 1.1.9. Implicit Price Deflators
for Gross Domestic Product’’ [Index
numbers, 2005 = 100]. Revised May 27,
2010. http://www.bea.gov/national/
nipaweb/TableView.asp?SelectedTable=
13&Freq=Qtr&FirstYear=2006&
LastYear=2008
U.S. Department of Labor, Office of the
Inspector General. ‘‘In 32 Years MSHA Has
Never Successfully Exercised Its Pattern of
Violations Authority,’’ Report No. 05–10–
005–06–001 (September 29, 2010).
Viscusi, W. and J. Aldy (2003). ‘‘The Value
of a Statistical Life: A Critical Review of
Market Estimates Throughout the World,’’
Journal of Risk and Uncertainty, 27:5–76.

List of Subjects in 30 CFR Part 104
Administrative practice and
procedure, Law enforcement, Mine
safety and health, Reporting and
recordkeeping requirements.
Dated: January 17, 2013.
Joseph A. Main,
Assistant Secretary of Labor for Mine Safety
and Health.

For the reasons set out in the
preamble, and under the authority of the
Federal Mine Safety and Health Act of
1977 as amended by the Mine
Improvement and New Emergency
Response Act of 2006, MSHA is
amending chapter I of title 30 of the
Code of Federal Regulations by revising
part 104 to read as follows:

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5073

PART 104—PATTERN OF VIOLATIONS
Sec.
104.1
104.2
104.3
104.4

Purpose and scope.
Pattern criteria.
Issuance of notice.
Termination of notice.

Authority: 30 U.S.C. 814(e), 957.
§ 104.1

Purpose and scope.

This part establishes the criteria and
procedures for determining whether a
mine operator has established a pattern
of significant and substantial (S&S)
violations at a mine. It implements
section 104(e) of the Federal Mine
Safety and Health Act of 1977 (Mine
Act) by addressing mines with an
inspection history of recurrent S&S
violations of mandatory safety or health
standards that demonstrate a mine
operator’s disregard for the health and
safety of miners. The purpose of the
procedures in this part is the restoration
of effective safe and healthful
conditions at such mines.
§ 104.2

Pattern criteria.

(a) At least once each year, MSHA
will review the compliance and
accident, injury, and illness records of
mines to determine if any mines meet
the pattern of violations criteria.
MSHA’s review to identify mines with
a pattern of S&S violations will include:
(1) Citations for S&S violations;
(2) Orders under section 104(b) of the
Mine Act for not abating S&S violations;
(3) Citations and withdrawal orders
under section 104(d) of the Mine Act,
resulting from the mine operator’s
unwarrantable failure to comply;
(4) Imminent danger orders under
section 107(a) of the Mine Act;
(5) Orders under section 104(g) of the
Mine Act requiring withdrawal of
miners who have not received training
and who MSHA declares to be a hazard
to themselves and others;
(6) Enforcement measures, other than
section 104(e) of the Mine Act, that have
been applied at the mine;
(7) Other information that
demonstrates a serious safety or health
management problem at the mine, such
as accident, injury, and illness records;
and
(8) Mitigating circumstances.
(b) MSHA will post the specific
pattern criteria on its Web site.
§ 104.3

Issuance of notice.

(a) When a mine has a pattern of
violations, the District Manager will
issue a pattern of violations notice to the
mine operator that specifies the basis for
the Agency’s action. The District
Manager will also provide a copy of this
notice to the representative of miners.

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(b) The mine operator shall post the
pattern of violations notice issued under
this part on the mine bulletin board.
The pattern of violations notice shall
remain posted at the mine until MSHA
terminates it under § 104.4 of this part.
(c) If MSHA finds any S&S violation
within 90 days after issuance of the
pattern notice, MSHA will issue an
order for the withdrawal of all persons
from the affected area, except those
persons referred to in section 104(c) of
the Mine Act, until the violation has
been abated.

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(d) If a withdrawal order is issued
under paragraph (c) of this section, any
subsequent S&S violation will result in
a withdrawal order that will remain in
effect until MSHA determines that the
violation has been abated.
§ 104.4

Termination of notice.

(a) Termination of a section 104(e)(1)
pattern of violations notice shall occur
when an MSHA inspection of the entire
mine finds no S&S violations or if
MSHA does not issue a withdrawal
order in accordance with section
104(e)(1) of the Mine Act within 90 days

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after the issuance of the pattern of
violations notice.
(b) The mine operator may request an
inspection of the entire mine or portion
of the mine. MSHA will not provide
advance notice of the inspection and
will determine the scope of the
inspection. Inspections of portions of
the mine, within 90 days, that together
cover the entire mine shall constitute an
inspection of the entire mine for the
purposes of this part.
[FR Doc. 2013–01250 Filed 1–17–13; 11:15 am]
BILLING CODE 4510–43–P

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