Enforcement of safety and health standards by the Mine Safety & Health Administration (MSHA) is rapidly increasing and will likely get even more stringent in FY 2013, due to reprogramming of funding into enforcement areas. The agency has budgeted to add more inspectors and more funding for its enforcement programs, and is aggressively implementing Pattern of Violations (POV) sanctions against all categories of mine operators.

MSHA's current POV criteria require mine operators whose violation history as well as injury and illness rates trigger Potential Pattern of Violations (PPOV) status to meet with the District Manager, to discuss what mitigating factors could justify keeping the operator out of POV status. Among the factors considered is the presence – or new implementation – of a safety and health management program. This is also among the listed "mitigating factors" in MSHA's proposed rule to modify POV criteria. The rule was published for public comment in February 2011, and the most recent 2012 regulatory agenda called for finalization of the rule in spring 2012.

Because the POV stems from statutory language in the Federal Mine Safety and Health Act of 1977, and simply expands upon the current POV criteria codified at 30 CFR Part 104, a short implementation time frame for the new rule can be expected. In the proposed rule, MSHA stated that it would consider a safety and health management program to be a mitigating factor if it was approved by the District Manager, but it is unclear whether this approval will be required in the final rule.

In addition, both MSHA and its sister agency – the Occupational Safety and Health Administration (OSHA) – have safety and health management programs on their regulatory agendas, although the expected date for an MSHA rule is more than 12 months away at this writing. OSHA, however, is moving more quickly, and the OSHA safety and health management program rule (also known as "I2P2" – for Injury/Illness Prevention Programs) was to begin its small-business review in March 2012, which could clear the way for a final rule to be proposed this summer, with a final rule by the end of 2012.

The I2P2 initiatives for both MSHA and OSHA are the centerpiece of the U.S. Department of Labor's "P3" initiative (Plan, Prevent and Protect Workers) for the safety and health agencies. This would suggest that, regardless of the outcome of the 2012 elections, I2P2 will be one rulemaking that both OSHA and MSHA will try to complete on schedule.

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