[Federal Register Volume 78, Number 15 (Wednesday, January 23, 2013)]
[Rules and Regulations]
[Pages 5055-5074]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-01250]



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Vol. 78

Wednesday,

No. 15

January 23, 2013

Part IV





Department of Labor





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Mine Safety and Health Administration





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30 CFR Part 104





Pattern of Violations; Final Rule

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

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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 104

RIN 1219-AB73


Pattern of Violations

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Final rule.

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SUMMARY: 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:

Table of Contents

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.

I. Executive Summary

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.

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 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 
non-disabling 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

[[Page 5057]]

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 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 Sec.  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 Sago, Darby, and 
Aracoma mines in 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 on-line 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. Sec.  104.1 Purpose and Scope

    Final Sec.  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 violations are corrected.

B. Sec.  104.2 Pattern Criteria

    Like the proposal, final Sec.  104.2 combines existing Sec. Sec.  
104.2 and 104.3 into a single provision. In combining existing 
Sec. Sec.  104.2 and 104.3, the final rule eliminates the initial 
screening review process and the PPOV notification. Like the proposal, 
the final rule eliminates the requirement that MSHA consider only final 
orders when evaluating mines for a POV. Final Sec.  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. Sec.  104.2--Elimination of Potential Pattern of Violations Initial 
Screening and Notification
    Final Sec.  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 short-term 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.
    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 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 
self-effectuating, 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 operators 
facilitates a more proactive approach to health and safety.
2. Sec.  104.2--Elimination of the Final Order Requirement
    Final Sec.  104.2 eliminates existing Sec.  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

[[Page 5060]]

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--

    * * * 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 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 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.

[[Page 5061]]

    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-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. Sec.  104.2(a)--POV Review at Least Annually
    Final Sec.  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 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. Sec.  104.2(a)(1) to (8)--General Pattern of Violations Criteria for 
MSHA Periodic Review
    Final Sec.  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.

[[Page 5062]]

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.
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 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. Sec.  104.2(a)(7)--Other Information
    Final Sec.  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 Sec. Sec.  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 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,

[[Page 5063]]

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. Sec.  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 Sec.  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 
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 
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

[[Page 5064]]

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 
MSHA-approved 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. Sec.  104.2(b)--Specific Criteria
    Final Sec.  104.2(b), proposed as Sec.  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 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 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 notice-and-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,

[[Page 5065]]

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 guidance to MSHA personnel 
when 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. Sec.  104.3 Issuance of Notice

    Final Sec.  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. Sec.  104.3(a) and (b)--Issuance and Posting of POV Notice
    Final Sec.  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 Sec.  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 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

[[Page 5066]]

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. Sec.  104.3(c) and (d)--Withdrawal of Persons From Area of Mine 
Affected by Subsequent S&S Violations After Issuance of POV Notice
    Final Sec.  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 Sec.  104.3(c) requires MSHA to issue an order 
withdrawing all persons from 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 Sec.  104.3(d) provides that if a withdrawal order is 
issued under Sec.  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. Sec.  104.4 Termination of Notice

    Final Sec.  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 follow-up inspections.
    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 non-S&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 Sec.  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

[[Page 5067]]

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 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
                                                       1-19           20-500           501+
----------------------------------------------------------------------------------------------------------------
Underground Coal................................             168             383              15             566
Surface Coal....................................             901             475               4           1,380
Underground M/NM................................             110             132               6             248
Surface M/NM....................................          10,837           1,231              21          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 billion: $18.8 billion from underground coal and $17.4 billion 
from surface coal. The estimated value of coal production was 
calculated from the amount of coal

[[Page 5068]]

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   Revenues--MNM
                          Size of mine                                 mines           mines      Total revenues
                                                                    (millions)      (millions)      (millions)
----------------------------------------------------------------------------------------------------------------
1-19 Employees..................................................            $224         $14,800         $15,000
20-500 Employees................................................          15,100          43,300          58,400
501+ Employees..................................................          20,900           5,900          26,800
                                                                 -----------------------------------------------
    Total*......................................................          36,200          64,000         100,200
----------------------------------------------------------------------------------------------------------------
* Discrepancies are due to rounding.

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 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 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

[[Page 5069]]

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 MSHA-approved 
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 mines.
    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 MSHA-approved 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 willingness-to-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-to-pay 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 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 (near-monopsony 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 Sec.  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

[[Page 5070]]

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 Sec.  
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 on-line 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 x 0.08 hours (5 minutes) per 
month x 12 months per year x $81.27 per hour).
    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 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 x $84.69 per hour) + (8 hours of miners' 
time x $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 x $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

[[Page 5071]]

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 x 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.

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.

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 
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

[[Page 5072]]

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.

----------------------------------------------------------------------------------------------------------------
                                                                                                      Cost as
                        Small mine group                             Number of        Revenue       percent of
                                                                       mines        (millions)        revenue
----------------------------------------------------------------------------------------------------------------
MSHA Definition (1-19 employees)................................          12,016         $15,000            0.04
SBA Definition (<= 500 employees)...............................          14,237          73,400            0.01
----------------------------------------------------------------------------------------------------------------

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 average-sized 
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.

VII. Paperwork Reduction Act of 1995

A. Summary

    This final rule contains a collection-of-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 MSHA-approved 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 Sec.  
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:
     Supervisors: 249 mines x 128 hr/mine = 31,872 hr
     Miners: 249 mines x 8 hr/mine = 1,992 hr
Burden Hour Costs:
     31,872 hr x $84.69/hr = $2,699,240
     1,992 hr x $36.92/hr = $73,545
Copying and Mailing Costs:
     249 mines x $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 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 well-being.
    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.

[[Page 5073]]

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.

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 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:

PART 104--PATTERN OF VIOLATIONS

Sec.
104.1 Purpose and scope.
104.2 Pattern criteria.
104.3 Issuance of notice.
104.4 Termination of notice.

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


Sec.  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.


Sec.  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.


Sec.  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.

[[Page 5074]]

    (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 Sec.  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.
    (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.


Sec.  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 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