Comments are due on April 4th on a Notice of Proposed Rulemaking that MSHA will publish in the Federal Register which is intended to ” revise and simplify the POV criteria and MSHA’s procedures for issuing a POV notice.”  According to Assistant Secretary of Labor Main, “the current POV system is broken, and this regulation is the next critical step in reforming the enforcement program under the existing statute.  It would require mine operators to be much more proactive in monitoring their compliance performance and would eliminate two provisions in the existing regulation: the potential POV procedure and the requirement regarding final orders.” 

MSHA has stated that provisions of the proposed rule include: 

  • The proposal would specify the general criteria that MSHA would use to identify mines with a pattern of violations. These general criteria would include compliance, accident, injury and illness records.
  • MSHA would post the specific POV criteria, along with compliance information, in a searchable (by mine) database, at http://www.msha.gov. The agency’s website would allow operators to monitor their own records against the POV criteria and take proactive measures to eliminate persistent, systemic safety and health hazards, and bring their mines into compliance with MSHA safety and health standards and regulations.
  • The proposal would eliminate the potential POV procedure, which involves written notification that a potential POV exists at a particular mining operation. No longer would mine operators receive advanced warning. Instead, screening under the proposed rule would be for mine operators that meet criteria for a pattern of violations, and the proposal would increase the frequency of MSHA’s review of a mine for a POV from once to at least twice a year. MSHA believes that the ready availability of compliance data on the agency’s website will eliminate the need to inform operators of a potential POV.
  • As a mitigating circumstance in determining whether operators have a POV, MSHA would consider an operator’s prior submission, for the agency’s approval, of a written safety and health management program aimed at finding and fixing problems, reducing significant and substantial violations, and improving safety and health conditions for miners. A significant and substantial – or S&S – violation is one that reasonably could be expected to result in a serious injury or illness.
  • The proposal would eliminate the existing requirement that only citations and orders which have become final orders can be used in MSHA’s POV review. The existing requirement provides an incentive for operators to contest citations and results in final orders years after the violations have occurred.
  • For operators placed on a POV, each S&S violation found at a mine would result in a withdrawal order until the violation is abated. Mines would remain in POV status until a complete inspection of the entire mine resulted in no S&S violations.

In addition to comments on the proposed rule, MSHA is also accepting comments under the Paperwork Reduction Act on the information collection burdens associated with the proposed rule.  MSHA estimates that “that developing an approved program with meaningful and measurable benchmarks would take about 160 hours of a supervisor’s time at an hourly wage of $84.70 and 240 hours of miners’ time at an hourly wage of $35.30” for a total cost of about $22,000/mine.

The proposed rule is attached below.  NOTE: The MSHA Federal Register notice did not include the correct email address to send comments to.  The correct email address is zzMSHA-Comments@dol.gov. 

MSHA.POV-NPRM