Criteria and Procedures for Proposed Assessment of Civil Penalties, 53054-53075 [06-7512]

Agencies

• DEPARTMENT OF LABOR
• Mine Safety and Health Administration

[Federal Register Volume 71, Number 174 (Friday, September 8, 2006)]
[Proposed Rules]
[Pages 53054-53075]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-7512]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 100

RIN 1219-AB51


Criteria and Procedures for Proposed Assessment of Civil 
Penalties

AGENCY: Mine Safety and Health Administration (MSHA), Labor.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Mine Safety and Health Administration (MSHA) is proposing 
to amend its civil penalty regulations to increase penalty amounts and 
to implement new requirements of the Mine Improvement and New Emergency 
Response (MINER) Act of 2006 amendments to the Mine Safety and Health 
Act of 1977 (Mine Act). In addition, MSHA is proposing to revise 
procedures for proposing civil monetary penalties to improve the 
efficiency and effectiveness of the civil penalty process. These 
changes are intended to induce greater mine operator compliance with 
the Mine Act and MSHA's safety and health standards and regulations, 
thereby improving safety and health for miners.

DATES: MSHA must receive comments on or before October 23, 2006. MSHA 
will hold six public hearings on September 26, 2006, September 28, 
2006, October 4, 2006, October 6, 2006, October 17, 2006, and October 
19, 2006. Details about the public hearings are in the SUPPLEMENTARY 
INFORMATION section of this document.

ADDRESSES: Comments must be clearly identified with as such and may be 
sent to MSHA by any of the following methods:
    (1) Federal eRulemaking Portal: http: //www.regulations.gov. Follow 
the instructions for submitting comments.
    (2) Electronic mail: zzMSHA-comments@dol.gov. Include ``RIN 1219-
AB51'' in the subject line of the message.
    (3) Telefax: (202) 693-9441. Include ``RIN 1219-AB51'' in the 
subject.
    (4) Regular Mail: MSHA, Office of Standards, Regulations, and 
Variances, 1100 Wilson Blvd., Room 2350, Arlington, Virginia 22209-
3939.
    (5) Hand Delivery or Courier: MSHA, Office of Standards, 
Regulations, and Variances, 1100 Wilson Blvd., Room 2350, Arlington, 
Virginia 22209-3939. Stop by the 21st floor and sign in at the 
receptionist's desk.
    Docket: Comments can be accessed electronically at www.msha.gov 
under the ``Rules and Regs'' link. MSHA will post all comments on the 
Internet without change, including any personal information provided. 
Comments may also be reviewed at the Office of Standards, Regulations, 
and Variances, 1100 Wilson Blvd., Room 2350, Arlington, Virginia.
    MSHA maintains a listserv that enables subscribers to receive e-
mail notification when rulemaking documents are published in the 
Federal Register. To subscribe to the listserv, go to https://
www.msha.gov/subscriptions/subscribe.aspx.
    Hearings: Locations of the public hearings are in the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Acting Director, 
Office of Standards, Regulations, and Variances, MSHA, 1100 Wilson 
Blvd, Room 2350, Arlington, Virginia 22209-3939, 
silvey.patricia@dol.gov (e-mail), (202) 693-9440 (voice), or (202) 693-
9441 (telefax).

SUPPLEMENTARY INFORMATION: 

Outline:
I. Public Hearings
II. Background
    A. General
    B. Rulemaking History
III. Discussion and Analysis of Proposed Changes to Part 100
    A. General Discussion
    B. Section-by-Section Analysis
IV. Executive Order 12866
    A. Population at Risk
    B. Costs
    C. Benefits
V. Feasibility
    A. Technological Feasibility
    B. Economic Feasibility
VI. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act (SBREFA)
    A. Definition of Small Mine
    B. Factual Basis for Certification
VII. Paperwork Reduction Act of 1995
VIII. Other Regulatory Considerations
    A. The Unfunded Mandates Reform Act of 1995
    B. Treasury and General Government Appropriations Act of 1999: 
Assessment of Federal Regulations and Policies on Families
    C. Executive Order 12630: Government Actions and Interference 
With Constitutionally Protected Property Rights
    D. Executive Order 12988: Civil Justice Reform
    E. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments

I. Public Hearings

    MSHA will hold six public hearings on the proposed rule. The 
hearings will begin at 9 a.m., and will be held on the following dates 
and locations:

[[Page 53055]]



------------------------------------------------------------------------
             Date                      Location              Phone
------------------------------------------------------------------------
September 26, 2006............  Mine Safety and           (202) 693-9440
                                 Health
                                 Administration, 1100
                                 Wilson Blvd, 25th
                                 Floor, Conference
                                 Room, Arlington,
                                 Virginia 22209.
September 28, 2006............  Sheraton Birmingham,      (205) 324-5000
                                 2101 Richard
                                 Arrington Jr. Blvd.,
                                 North Birmingham,
                                 Alabama 35203.
October 4, 2006...............  Hilton Salt Lake City     (801) 238-2999
                                 Center, 255 South
                                 West Temple, Salt
                                 Lake City, Utah
                                 84101.
October 6, 2006...............  Hilton St. Louis          (800) 314-2117
                                 Airport, 10330
                                 Natural Bridge Road,
                                 St. Louis, Missouri
                                 63134.
October 17, 2006..............  Charleston Marriott       (304) 345-6500
                                 Town Center, 200 Lee
                                 Street East,
                                 Charleston, West
                                 Virginia 25301.
October 19, 2006..............  Pittsburgh Airport        (412) 490-6602
                                 Marriott, 777 Aten
                                 Road, Coraopolis,
                                 Pennsylvania 15108.
------------------------------------------------------------------------

    Requests to speak at a hearing should be made at least five days 
prior to the hearing dates. Requests to speak may be made by telephone 
(202-693-9440), telefax (202) 693-9441, or mail (MSHA, Office of 
Standards, Regulations, and Variances, 1100 Wilson Blvd., Rm. 2350, 
Arlington, Virginia 22209-3939). Any unallocated time at the hearings 
will be made available to persons making same-day requests to speak.
    The hearings will begin with an opening statement from MSHA, 
followed by an opportunity for members of the public to make oral 
presentations to a hearing panel. Speakers will be assigned in the 
order in which their requests are received. Speakers and other 
attendees may present written information or other articles to the MSHA 
panel for inclusion in the rulemaking record.
    The hearings will be conducted in an informal manner. The hearing 
panel may ask questions of speakers. Formal rules of evidence and cross 
examination will not apply. The presiding official may limit 
presentations and exclude irrelevant or unduly repetitious material and 
questions to ensure the orderly progress of the hearings.
    Transcripts of the hearings will be included in the rulemaking 
record. Copies of the transcripts will be available to the public, and 
can be viewed at https://www.msha.gov.
    MSHA will accept post-hearing written comments and other 
appropriate data for the record from any interested party, including 
those not presenting oral statements. Comments must be received at MSHA 
no later than October 23, 2006.

II. Background

A. General

    The Mine Act requires MSHA to issue citations or orders to mine 
operators for any violations of a mandatory health or safety standard, 
rule, order, or regulation promulgated under the Mine Act. Upon issuing 
a citation, the Secretary's authorized representative (inspector) 
specifies a time for the violation to be abated. If the operator does 
not abate the condition within the allowed time, the inspector may 
extend the time to abate or issue an order requiring all persons to be 
withdrawn from the area affected by the violation until the violation 
is abated. The Mine Act further requires assessment of civil monetary 
penalties for violations. Sections 105 and 110 of the Mine Act provide 
for the assessment of these penalties. The following six criteria in 
section 110(i) of the Mine Act are used to assess civil monetary 
penalties:
    (1) The appropriateness of the penalty to the size of the business 
of the operator charged;
    (2) The operator's history of previous violations;
    (3) Whether the operator was negligent;
    (4) The gravity of the violation;
    (5) The demonstrated good faith of the operator charged in 
attempting to achieve rapid compliance after notification of a 
violation; and
    (6) The effect of the penalty on the operator's ability to continue 
in business.
    MSHA proposes a civil penalty assessment for each violation. Upon 
receipt of the proposed assessment, the mine operator or other person 
has 30 days to contest the assessment before the Federal Mine Safety 
and Health Review Commission (Commission), an independent adjudicatory 
agency established under the Mine Act. A proposed assessment that is 
not contested within 30 days becomes a final order of the Commission by 
operation of law and will not be subject to review by any court or 
agency. A proposed assessment that is contested before the Commission 
is reviewed by the Commission de novo.

B. Rulemaking History

    On May 30, 1978, MSHA published its first final rule pertaining to 
the proposed assessment of civil penalties under the Mine Act for both 
coal mines and metal and nonmetal mines (47 FR 22286). The maximum 
civil penalty that MSHA could assess under the Mine Act at that time 
was $10,000.
    The 1978 rule consisted of a two-tiered system of assessing 
proposed penalties under either a regular assessment or a special 
assessment. Since 1978, MSHA has revised its civil penalty regulations 
in 30 CFR part 100 essentially to: (1) Add a single penalty assessment 
provision; (2) change the assessment process to conform to a court 
order concerning history of violations; (3) increase penalty amounts 
due to legislative action; and (4) change penalty amounts and processes 
due to other compelling circumstances.
    Under the existing regulations, MSHA proposes penalties using a 
three-tiered process: (1) Regular assessments; (2) single penalty 
assessments; and (3) special assessments. The maximum civil penalty 
assessment is $60,000. The single penalty assessment is $60. The 
maximum daily civil penalty which may be assessed for failure to 
correct a violation within the time permitted is $6,500 and the maximum 
penalty for smoking or carrying smoking materials underground is $275.

III. Discussion and Analysis of Proposed Changes to Part 100

A. General Discussion

    MSHA is proposing to revise its procedures for assessing proposed 
civil penalties to update and increase penalties for violations of the 
standards and regulations promulgated under the Mine Act and to 
implement new civil penalty requirements in the MINER Act (Pub. L. 109-
236). These new requirements address civil penalties related to prompt 
incident notification, and flagrant and unwarrantable violations. In 
accordance with MINER Act requirements, citations and orders issued on 
or after June 16, 2006, will be subject to the minimum penalties 
specified in the Act for violations involving failure to promptly 
notify MSHA within 15 minutes and unwarrantable failure.
    The intended purpose of civil penalties under the Mine Act is to 
``convince operators to comply with the Act's requirements.'' (S. Rep. 
No. 181, 95th Cong., 1st Sess. 45 (1977),

[[Page 53056]]

reprinted in Senate Subcommittee on Labor, Committee on Human 
Resources, 95th Cong., 2d Sess., Legislative History of the Federal 
Mine Safety and Health Act of 1977, at 633 (1978)). The Congress 
intended that the imposition of civil penalties would induce mine 
operators to be proactive in their approach to mine safety and health, 
and take necessary action to prevent safety and health hazards before 
they occur. In this proposal, the Agency is strengthening the civil 
penalty assessment regulations which will be an important tool in the 
reduction of fatalities and improvement in miner safety and health.
    Under MSHA's existing procedures, a civil penalty can be assessed 
under the single penalty provision, the regular assessment provision, 
or the special assessment provision. The single penalty provision is 
applied to most violations that are not reasonably likely to result in 
a reasonably serious injury or illness (non-Significant and 
Substantial, or non-S&S) and that are abated in a timely manner, 
provided the operator does not have an excessive history of violations. 
The single penalty assessment is currently $60.
    The regular assessment is used to address most S&S violations, 
i.e., those that are reasonably likely to result in a reasonably 
serious injury or illness. Under the regular assessment provision, 
penalty points are assigned based on five statutory criteria: 
Operator's size, history, negligence, demonstrated good faith towards 
abatement, and the gravity of the violation. The total points are then 
converted into a dollar amount. The resulting amount constitutes the 
proposed penalty unless, under the sixth statutory criterion, the 
operator shows that the penalty would adversely affect its ability to 
continue in business. Currently, the minimum regular assessment is $72 
and the maximum regular assessment is $60,000 for each violation.
    Under the existing rule, MSHA reviews eight categories of 
violations for special assessment--those associated with fatalities as 
well as those associated with other aggravating circumstances. These 
are violations that MSHA believes, because of the particular 
circumstances surrounding the violation, should not be processed as a 
single penalty or regular assessment. The maximum special assessment is 
currently $60,000.
    MSHA reviewed the history of violations and penalty assessments at 
mines which have experienced fatal accidents recently. At these mines, 
MSHA found repeated violations of several standards for which the $60 
single penalty was assessed. MSHA also reviewed violations at all 
mines. The number of citations for violations of MSHA's standards and 
regulations has been on the rise since 2003. Specifically, the number 
of all violations assessed increased from 103,404 in 2003 to 116,731 in 
2005. The number of violations that received a single penalty 
assessment increased from 69,078 in 2003 to 75,394 in 2005; the number 
of violations that received a regular assessment increased from 32,608 
in 2003 to 37,968 in 2005; and the number of violations that received a 
special assessment increased from 1,718 in 2003 to 3,369 in 2005.
    MSHA is proposing to revise the civil penalty assessment process so 
that proposed penalties will increase proportionately to increases in 
operator size, history, and negligence and the gravity or seriousness 
of the violation. To accomplish this, the proposed rule would:
    (1) Reformulate the existing process of assigning points under the 
regular assessment provision;
    (2) Add a provision in an operator's history addressing repeat 
violations;
    (3) Delete the existing single penalty assessment provision;
    (4) Revise the penalty conversion table by increasing the dollar 
value of each point assigned under the regular assessment provision;
    (5) Remove the limit on types of violations that MSHA will review 
for possible special assessment by removing the list of specific 
categories;
    (6) Shorten the time allowed to request a conference; and
    (7) Implement new requirements of the MINER Act.
    MSHA is proposing to delete the single penalty assessment 
provision. MSHA has reevaluated the single penalty provision and 
believes that the proposed rule reflects a more appropriate and 
effective approach to achieving the congressional purpose with respect 
to civil monetary penalties.
    MSHA is proposing to implement new penalty requirements in the 
MINER Act for prompt incident notification and flagrant violations in 
Sec.  100.5.
    MSHA is proposing a new provision in Sec.  100.4 to implement MINER 
Act requirements related to unwarrantable failure penalties. This 
provision sets minimum penalties for any citation or order issued under 
Sec.  104(d) of the Mine Act.
    The proposed changes are intended to induce greater mine operator 
compliance with the Mine Act and MSHA's safety and health standards, 
thereby improving safety and health for miners. The proposed changes 
are described in more detail in the following section-by-section 
analysis.

B. Section-by-Section Analysis

1. Scope and Purpose (Sec.  100.1)
    Existing Sec.  100.1 would not change.
2. Applicability (Sec.  100.2)
    Existing Sec.  100.2 provides that the criteria and procedures in 
this part apply to all ``evaluations and proposed assessments of civil 
penalties.'' The proposed rule would remove the word ``evaluations'' 
because the process of proposing assessments includes evaluations. This 
proposed section contains no substantive changes.
3. Determination of Penalty; Regular Assessment (Sec.  100.3)
    a. General (Sec.  100.3(a)). Existing Sec.  100.3 establishes the 
formula to apply the statutory criteria to violations that are not 
processed under the existing single penalty assessment (Sec.  100.4) or 
special assessment (Sec.  100.5) provisions. This formula is an 
administrative mechanism used by MSHA to determine the appropriate 
penalty by applying the statutory criteria to particular facts 
surrounding a violation. Existing Sec.  100.3(a) lists the criteria 
described in Sec. Sec.  105(b)(1)(B) and 110(i) of the Mine Act. The 
proposed rule makes several editorial changes for clarification and 
ease of reading, but makes no substantive changes to this section.
    b. Appropriateness of the penalty to the size of the operator's 
business (Sec.  100.3(b)). Existing Sec.  100.3(b) contains five tables 
assigning penalty points for size of coal mines, controlling entities 
of coal mines, metal and nonmetal mines, controlling entities of metal 
and nonmetal mines, and independent contractors. The size of coal mines 
and their controlling entities is measured by the amount of coal 
production. The size of metal and nonmetal mines and their controlling 
entities is measured by the number of hours worked. The size of 
independent contractors is measured by the total number of hours worked 
by the independent contractors at all mines regardless of the commodity 
being mined.
    Existing Sec.  100.3(b) assigns up to 10 penalty points for the 
size of mines or independent contractors based on a scale which 
consists of 11 levels. In addition, up to 5 penalty points are assigned 
for the size of the controlling entity of a coal mine or a metal or 
nonmetal mine.
    MSHA is proposing editorial changes to Sec.  100.3(b) to make the 
provision easier to read. MSHA is also proposing to clarify the 
existing provision by

[[Page 53057]]

adding a statement concerning the way size of coal mines and metal and 
nonmetal mines is determined. The existing provision only states how 
the size of an independent contractor is determined. There are no 
proposed changes to the point table addressing the size of controlling 
entities.
    MSHA is proposing to increase the number of penalty points based on 
the operator's size. Tables III-1, III-2, and III-3 show both the 
existing and proposed point schedules. The maximum number of penalty 
points for size would increase from 10 to 20 to assure that the amount 
of the penalty is an appropriate economic inducement of future 
compliance by the operator. The proposed point increase is based on 
MSHA's analysis of existing size data for coal operators, metal and 
nonmetal operators, and independent contractors.
    According to the 2005 data, nearly half of the existing coal mines 
had annual tonnage of up to 15,000 tons. Slightly more than half of the 
existing metal and nonmetal mines had fewer than 10,000 annual hours 
worked. About half of independent contractors had fewer than 10,000 
annual hours worked at all mines. Consistent with existing Sec.  
100.3(b), MSHA proposes that coal mines with an annual tonnage of up to 
15,000 tons, metal and nonmetal mines with fewer than 10,000 hours 
worked, and independent contractors with fewer than 10,000 hours worked 
at all mines would all receive 0 penalty points for this criterion.
    Under the proposal, the remaining coal mines, i.e., those with 
annual tonnage levels above 15,000 tons; the remaining metal and 
nonmetal mines, i.e., those with annual hours worked above 10,000; and 
the remaining independent contractors, i.e., those with annual hours 
worked at all mines above 10,000, would receive twice as many penalty 
points as under the existing rule, up to a maximum of 20.
    The proposed size schedule would result in penalties that are, on 
average, more than twice as high at the smallest (one to five 
employees) coal mines than at metal and nonmetal mines of similar size 
and over four times higher at coal mines in the five to 19 employee 
size range than similar sized metal and non-metal mines.
    The proposed point structure in paragraph (b) is designed so that 
higher penalties would be computed for larger operations. This proposal 
is consistent with the Mine Act's requirement to consider the size of 
the operation when assessing penalties. MSHA believes penalties 
assessed under the existing regulations are often too low to be an 
effective deterrent for noncompliance at some of the largest 
operations.
    The proposal, like the existing rule, places greater emphasis on 
size of the mine than on size of the controlling entity in assigning 
penalty points. The Agency solicits comments on whether, in considering 
the size of the operator, greater weight should be placed on the size 
of the controlling entity.

         Table III-1.--Size of Coal Mine: Annual Tonnage of Mine
------------------------------------------------------------------------
                                                  Existing     Proposed
            Annual tonnage of mine                penalty      penalty
                                                   points       points
------------------------------------------------------------------------
0 to 15,000...................................            0            0
Over 15,000 to 30,000.........................            1            2
Over 30,000 to 50,000.........................            2            4
Over 50,000 to 100,000........................            3            6
Over 100,000 to 200,000.......................            4            8
Over 200,000 to 300,000.......................            5           10
Over 300,000 to 500,000.......................            6           12
Over 500,000 to 800,000.......................            7           14
Over 800,000 to 1.1 million...................            8           16
Over 1.1 million to 2 million.................            9           18
Over 2 million................................           10           20
------------------------------------------------------------------------


  Table III-2.--Size of Metal and Nonmetal Mine: Annual Hours Worked at
                                  Mine
------------------------------------------------------------------------
                                                  Existing     Proposed
          Annual hours worked at mine             penalty      penalty
                                                   points       points
------------------------------------------------------------------------
0 to 10,000...................................            0            0
Over 10,000 to 20,000.........................            1            2
Over 20,000 to 30,000.........................            2            4
Over 30,000 to 60,000.........................            3            6
Over 60,000 to 100,000........................            4            8
Over 100,000 to 200,000.......................            5           10
Over 200,000 to 300,000.......................            6           12
Over 300,000 to 500,000.......................            7           14
Over 500,000 to 700,000.......................            8           16
Over 700,000 to 1 million.....................            9           18
Over 1 million................................           10           20
------------------------------------------------------------------------


Table III-3.--Size of Independent Contractor: Annual Hours Worked at All
                                  Mines
------------------------------------------------------------------------
                                                  Existing     Proposed
       Annual hours worked at all mines           penalty      penalty
                                                   points       points
------------------------------------------------------------------------
0 to 10,000...................................            0            0
Over 10,000 to 20,000.........................            1            2
Over 20,000 to 30,000.........................            2            4

[[Page 53058]]

 
Over 30,000 to 60,000.........................            3            6
Over 60,000 to 100,000........................            4            8
Over 100,000 to 200,000.......................            5           10
Over 200,000 to 300,000.......................            6           12
Over 300,000 to 500,000.......................            7           14
Over 500,000 to 700,000.......................            8           16
Over 700,000 to 1 million.....................            9           18
Over 1 million................................           10           20
------------------------------------------------------------------------

    c. History of previous violations (Sec.  100.3(c)). Existing Sec.  
100.3(c) bases the operator's violation history on the number of 
violations received in a preceding 24-month period for which a civil 
penalty has been paid or finally adjudicated. For production operators, 
penalty points are calculated using the average number of violations 
per inspection day (VPID). For independent contractors, penalty points 
are calculated using the annual average number of violations at all 
mines in a preceding 24-month period. The proposal would add the phrase 
``or have become final orders of the Commission'' in the second 
sentence of this paragraph. The proposal would retain MSHA's intent 
that only violations which have become final be included in an 
operator's history.
    MSHA is proposing three several substantive changes to existing 
Sec.  100.3(c). First, MSHA is proposing that violation history include 
two components: (1) Paragraph (c)(1) would address the total number of 
violations; and (2) paragraph (c)(2) would address the number of repeat 
violations of the same standard. Second, an operator's or independent 
contractor's history of violations would be based on a preceding 15-
month period rather than a 24-month period. This change would apply to 
both components--overall history and repeat violations--of history. 
Third, MSHA is proposing to change the point tables for overall history 
and to add a new point table addressing repeat violations of the same 
standard. Finally, MSHA is proposing to revise the calculation that 
addresses the overall history of an independent contractor.
    MSHA is proposing to reduce the 24-month review period to a 15-
month review period because the agency believes that a period of 15 
months would more accurately reflect an operator's current state of 
compliance. This change would provide MSHA with sufficient data to 
appropriately determine an operator's compliance record, including any 
trend, even for mining operations that are inspected on a less frequent 
basis. This change would provide an incentive for improving safety and 
health to an operator that has a deteriorating safety and health record 
in the recent past.
    Proposed Sec.  100.3(c)(1) addresses the overall history of 
production operators and independent contractors. MSHA would continue 
to assign penalty points for production operators based on the number 
of assessed violations per inspection day. MSHA is proposing to 
increase the points assigned to the five highest levels of the VPID 
table. The highest level would be assigned the maximum of 25 points. 
MSHA is proposing to increase penalty points starting from the ``over 
1.3 to 1.5'' level or mid-level of the VPID table because MSHA believes 
that operators of mines with a VPID in the mid- and upper levels show 
the least concern for compliance with the Mine Act and MSHA safety and 
health standards and regulations. Higher penalties for such operators 
may encourage them to comply with the Mine Act's requirements.
    Under proposed Sec.  100.3(c)(1), production operators with fewer 
than 10 assessed violations in a preceding 15-month period would not 
receive points. This proposed provision is similar to existing Sec.  
100.4(b) pertaining to excessive history. The proposed provision takes 
into consideration small mines that may receive a low number of 
inspection days in a preceding 15-month period. In such small 
operations, even though the total number of violations may be low, the 
VPID could easily be greater than the highest 2.1 VPID level. These 
small operations, however, are not necessarily the ones which MSHA is 
targeting in this aspect of the history criterion, since such a record 
may not reflect systemic problems of noncompliance. MSHA believes that 
these small operators should not receive points under this aspect of 
this criterion.
    Under proposed Sec.  100.3(c)(1), the number of violations for 
independent contractors would no longer be based on the average number 
of assessed violations per year at all mines as it is under existing 
Sec.  100.3(c). The number of violations for independent contractors 
would be based on the total number of assessed violations at all mines 
during a preceding 15-month period. Since the Agency proposes to reduce 
the history time period from 24 to 15 months, this eliminates the need 
for an annual average. MSHA estimates that this change may result in a 
de minimis increase in the average assessment issued to independent 
contractors. The proposed point table reflects this change. MSHA 
solicits comments on this proposed approach to determining violation 
history for independent contractors, i.e., whether an annualized 
average should continue to be used. For independent contractors, MSHA 
is proposing to increase the number of penalty points for the levels 
starting with ``over 30 to 35'' and above and to increase the maximum 
number of points for this aspect of the history criterion from 20 to 
25. MSHA believes that independent contractors with a greater number of 
violations in the preceding 15-month period show the least concern for 
compliance with the Mine Act and MSHA safety and health standards and 
regulations. MSHA intends that this aspect of the history criterion 
would serve as greater inducement for such operators to comply with the 
Mine Act and MSHA's safety and health standards and regulations. MSHA 
therefore proposes to increase the points for the upper five levels of 
the number of violations. See tables III-4 and III-5 for a comparison 
of the existing and proposed penalty point scales for production 
operators and independent contractors, respectively.

[[Page 53059]]



   Table III-4.--Production Operator's Overall History of Violations:
             Average Number of Violations per Inspection Day
------------------------------------------------------------------------
                                                  Existing     Proposed
         Violations per inspection day            penalty      penalty
                                                   points       points
------------------------------------------------------------------------
0 to 0.3......................................            0            0
Over 0.3 to 0.5...............................            2            2
Over 0.5 to 0.7...............................            4            4
Over 0.7 to 0.9...............................            6            6
Over 0.9 to 1.1...............................            8            8
Over 1.1 to 1.3...............................           10           10
Over 1.3 to 1.5...............................           12           13
Over 1.5 to 1.7...............................           14           16
Over 1.7 to 1.9...............................           16           19
Over 1.9 to 2.1...............................           18           22
Over 2.1......................................           20           25
------------------------------------------------------------------------


  Table III-5.--Independent Contractor's Overall History of Violations
------------------------------------------------------------------------
                                                  Existing     Proposed
             Number of violations                 penalty      penalty
                                                   points       points
------------------------------------------------------------------------
0 to 5........................................            0            0
Over 5 to 10..................................            2            2
Over 10 to 15.................................            4            4
Over 15 to 20.................................            6            6
Over 20 to 25.................................            8            8
Over 25 to 30.................................           10           10
Over 30 to 35.................................           12           13
Over 35 to 40.................................           14           16
Over 40 to 45.................................           16           19
Over 45 to 50.................................           18           22
Over 50.......................................           20           25
------------------------------------------------------------------------

    Proposed Sec.  100.3(c)(2) would add a new component to the history 
criterion: Repeat violations of the same standard. The number of repeat 
violations of the same standard in a preceding 15-month period would be 
part of the operator's history of violations. For the purpose of 
determining repeat violations, each citable standard would be 
considered a separate ``standard.'' Repeat violations of the same 
standard would include only assessed violations of the relevant 
standard that are paid or finally adjudicated, or became final orders 
of the Commission. For example, previous assessments for violations of 
Sec.  75.202(a) would not be included in the repeat history for a 
violation of Sec.  75.202(b). Similarly, previous assessments for 
violations of Sec.  56.14101(a)(1) would not be included in the repeat 
history for a violation of Sec.  56.14101(a)(2). MSHA requests comments 
on this approach to determining repeat violations. In addition, MSHA 
solicits comments on whether, in determining penalty points for repeat 
violations of the same standard, the Agency should factor in the number 
of inspection days during which the repeat violations were cited. MSHA 
also solicits comments on whether only S&S violations should be 
considered in determining repeat violations of the same standard.
    A maximum of 20 penalty points could be assigned using this new 
component of the history criterion. MSHA is proposing this new 
provision because the Agency believes that operators who repeatedly 
violate the same standard may indicate an attitude which has little 
regard for getting to the root cause of violations of safe and 
healthful working conditions. The Agency believes that these operators 
show a lack of commitment to good mine safety and health practices by 
letting cited and corrected hazardous conditions recur.
    The analysis of assessments for the 15-month period from January 1, 
2005, through March 31, 2006 reveals that 698 of the 10,227 mines with 
violations each had at least six violations of the same standard. 
Furthermore, 99 of the 698 mines had more than twenty violations of the 
same standard during the 15 month period. MSHA believes that the Agency 
needs to adjust its civil penalty structure so that the penalties can 
more appropriately serve as a deterrent to this type of behavior, 
thereby resulting in greater compliance and more effective mine safety 
and health.
    Under proposed Sec.  100.3(c)(2), an operator with five or fewer 
repeat violations of the same standard in a preceding 15-month period 
would not receive penalty points. MSHA believes that that this new 
component of the history criterion should be applied to those operators 
who violate the same standard with a certain degree of repetition. 
Under the proposal, operators could receive a maximum of 20 penalty 
points for this aspect of the history criterion. MSHA believes that 
this new proposal will encourage greater operator compliance with the 
Mine Act and MSHA's safety and health standards and regulations, which 
is consistent with Congress' intent.
    Penalty points proposed to be assigned to the number of repeat 
violations of the same standard are presented in Table III-6.

    Table III-6.--New Table Addressing Repeat Violations of the Same
                                Standard
------------------------------------------------------------------------
                                                                Penalty
                     Number of violations                        points
------------------------------------------------------------------------
5 or fewer...................................................          0
6............................................................          1
7............................................................          2
8............................................................          3
9............................................................          4
10...........................................................          5
11...........................................................          6
12...........................................................          7
13...........................................................          8
14...........................................................          9
15...........................................................         10
16...........................................................         11
17...........................................................         12
18...........................................................         14
19...........................................................         16
20...........................................................         18
More than 20.................................................         20
------------------------------------------------------------------------

    d. Negligence (Sec.  100.3(d)). Existing Sec.  100.3(d) provides 
for evaluating the degree of negligence involved in a violation under 5 
categories: No negligence, which means that the operator exercised 
diligence and could not have known of the violative condition or 
practice; low negligence, which means that the operator knew or should 
have known of the violative condition or practice, but there are 
considerable mitigating circumstances; moderate negligence, which means 
that the operator knew or should have known of the violative condition 
or practice, but there are mitigating circumstances; high negligence, 
which means the operator knew or should have known of the violative 
condition or practice, and there are no mitigating circumstances; and 
reckless disregard, which means the operator displayed conduct which 
exhibits the absence of the slightest degree of care. An increased 
number of penalty points is assigned to the higher levels of 
negligence. The maximum number of points for negligence is 25 under 
existing Sec.  100.3(d).
    Proposed Sec.  100.3(d) would retain the existing five levels of 
negligence, but would increase the maximum number of penalty points 
from 25 to 50 so that more penalty points would be assigned to 
operators who exhibit increasingly higher levels of negligence, i.e., a 
lack of care towards protection of miners from safety and health 
hazards. Under the proposed table, points for no negligence and low 
negligence would not change. Penalty points assigned under the three 
highest levels of negligence would increase more rapidly than under the 
existing regulation. Moderate negligence would add 20 points rather 
than 15 points as under the existing regulation; high negligence would 
add 35 points rather than the 20 points under the existing regulation; 
and reckless disregard would add 50

[[Page 53060]]

points rather than 25 points as under the existing regulation.
    Table III-7 compares penalty points in existing and proposed Sec.  
100.3(d).

                        Table III-7.--Negligence
------------------------------------------------------------------------
                                                  Existing     Proposed
                  Categories                      penalty      penalty
                                                   points       points
------------------------------------------------------------------------
No negligence.................................            0            0
 (The operator exercised diligence and could
 not have known of the violative condition or
 practice.)
Low negligence................................           10           10
(The operator knew or should have known of the
 violative condition or practice, but there
 are considerable mitigating circumstances.)
Moderate negligence...........................           15           20
(The operator knew or should have known of the
 violative condition or practice, but there
 are mitigating circumstances.)
High negligence...............................           20           35
(The operator knew or should have known of the
 violative condition or practice, but there
 are mitigating circumstances.)
Reckless disregard............................           25           50
(The operator displayed conduct which exhibits
 the absence of the slightest degree of care.)
------------------------------------------------------------------------

    e. Gravity (Sec.  100.3(e)). Existing Sec.  100.3(e) uses three 
factors to measure the gravity of a violation:(1) Likelihood of 
occurrence of an event, (2) severity of injury or illness if the event 
occurred or were to occur, and (3) the number of persons potentially 
affected if the event occurred or were to occur. A maximum of 10 
penalty points may be assigned from each of the three factors, for a 
maximum of 30 points for the gravity criterion.
    Proposed Sec.  100.3(e) would retain the three measures of gravity, 
but would change the number of penalty points assigned for each. The 
maximum number of points assigned for likelihood of occurrence of an 
event would increase from 10 to 50, the maximum number of points 
assigned for severity of injury or illness would increase from 10 to 
20, and the maximum number of points assigned for the number of persons 
potentially affected would increase from 10 to 18. In addition, the 
number of categories in the Persons Potentially Affected Table would 
increase from 7 to 11. The total points that could be assigned for the 
gravity criterion would increase from 30 to 88.
    MSHA is proposing to adjust the number of penalty points that may 
be assigned under the gravity criterion to focus attention on the more 
serious mine safety and health hazards. MSHA believes that the penalty 
points in the proposed gravity tables will result in mine operators 
placing greater emphasis on correcting the more serious violations 
because they pose the greatest safety and health risk to miners. The 
proposal distinguishes the less serious violations so that they would 
receive an appropriate penalty under the regular assessment formula. 
Existing Sec.  100.3(e) has also been reworded for easier reading. 
Tables III-8 through III-10 show both the existing and the proposed 
penalty points for likelihood, gravity, and persons potentially 
affected.

                        Table III-8.--Likelihood
------------------------------------------------------------------------
                                                  Existing     Proposed
           Likelihood of occurrence               penalty      penalty
                                                   points       points
------------------------------------------------------------------------
No likelihood.................................            0            0
Unlikely......................................            2           10
Reasonably likely.............................            5           30
Highly likely.................................            7           40
Occurred......................................           10           50
------------------------------------------------------------------------


                         Table III-9.--Severity
------------------------------------------------------------------------
                                                  Existing     Proposed
  Severity of injury or illness if the event      penalty      penalty
           occurred or were to occur               points       points
------------------------------------------------------------------------
No lost work days.............................            0            0
(All occupational injuries and illnesses as
 defined in 30 CFR part 50 except those listed
 below.)
Lost work days or restricted duty.............            3            5
(Any injury or illness which would cause the
 injured or ill person to lose one full day of
 work or more after the day of the injury or
 illness, or which would cause one full day or
 more of restricted duty.)
Permanently disabling.........................            7           10
(Any injury or illness which would be likely
 to result in the total or partial loss of the
 use of any member or function of the body.)
Fatal.........................................           10           20
(Any work-related injury or illness resulting
 in death, or which has a reasonable potential
 to cause death.)
------------------------------------------------------------------------


[[Page 53061]]


               Table III-10.--Persons Potentially Affected
------------------------------------------------------------------------
 Number of persons potentially affected if the event occurred or were to
                                  occur
-------------------------------------------------------------------------
                                 Existing                      Proposed
        Existing scale            points     Proposed scale     points
------------------------------------------------------------------------
0............................           0   0..............           0
1............................           1   1..............           1
2............................           2   2..............           2
3............................           4   3..............           4
4 to 5.......................           6   4..............           6
6 to 9.......................           8   5..............           8
More than 9..................          10   6..............          10
                               ...........  7..............          12
                               ...........  8..............          14
                               ...........  9..............          16
                               ...........  10 or more.....          18
------------------------------------------------------------------------

    f. Demonstrated good faith of the operator in abating the violation 
(Sec.  100.3(f)). Existing Sec.  100.3(f) allows for a 30% reduction in 
the amount of a regular assessment where the operator abates the 
violation within the time set by the inspector. When the operator does 
not abate the violation within the time set by the inspector, 10 
penalty points are assigned.
    Proposed Sec.  100.3(f) would decrease the amount of the reduction 
from 30% to 10% where an operator abates a violation within the time 
set by the inspector. MSHA believes this is a more appropriate 
reduction because operators are required by law to timely abate 
violations.
    MSHA is also proposing to delete the existing provision which 
assigns ten additional penalty points where an operator does not abate 
the violation within the specified time period. The Mine Act provides 
two sanctions for failure to correct violations within the time set by 
the inspector: Sec.  104(b) requires a withdrawal order, which 
effectively shuts down production in the area affected, and Sec.  
110(b) allows assessment of a daily penalty.
    MSHA has reviewed the civil penalty assessment data for the last 
several years and believes that the proposed 10% good faith reduction 
is a more appropriate credit for mine operators who promptly correct 
hazardous conditions.
    g. Penalty conversion table (Sec.  100.3(g)). Existing Sec.  
100.3(g) provides the penalty conversion table used to convert total 
penalty points to a dollar amount. The existing dollar amounts range 
from $72 to $60,000, and correspond to penalty points ranging from 20 
or fewer to 100.
    Under the proposed penalty conversion table, MSHA would retain the 
statutory maximum penalty of $60,000, but would establish a new minimum 
penalty of $112. The proposed dollar amounts would correspond to 
penalty points ranging from 60 or fewer to 140.
    The proposed penalty conversion table is derived by combining two 
methods of converting points to dollars. There is a lower section (from 
60 or fewer to 133 points) and an upper section (above 133 points) of 
the proposed conversion table. The proposed table starts at $112 when 
the number of points is 60 or fewer. Each additional point above 60 up 
to 133 causes the dollar value to increase by a fixed 8.33%. The dollar 
value assigned for 133 points is $38,387. Above 133 points the dollar 
value increases by approximately $3,070 for each penalty point. The 
maximum number of points is 140 and the maximum dollar value is 
$60,000.
    When applied to MSHA's 2005 assessment data, the penalty amounts 
under the proposed conversion table increase generally as severity of 
the violation and violation history increase. Section III of this 
preamble provides data showing the increased penalty amounts under the 
proposal. Table III-12 shows the existing and the proposed penalty 
conversion tables.

  Table III-12.--Existing and Proposed Penalty Point Conversion Tables
------------------------------------------------------------------------
                                 Current                       Proposed
        Current points          penalties   Proposed points   penalties
------------------------------------------------------------------------
20 or fewer..................          $72  60 or fewer....         $112
21...........................           80  61.............          121
22...........................           87  62.............          131
23...........................           94  63.............          142
24...........................          101  64.............          154
25...........................          109  65.............          167
26...........................          120  66.............          181
27...........................          131  67.............          196
28...........................          142  68.............          212
29...........................          153  69.............          230
30...........................          164  70.............          249
31...........................          178  71.............          270
32...........................          193  72.............          293
33...........................          207  73.............          317
34...........................          221  74.............          343
35...........................          237  75.............          372
36...........................          254  76.............          403
37...........................          273  77.............          436
38...........................          291  78.............          473

[[Page 53062]]

 
39...........................          310  79.............          512
40...........................          327  80.............          555
41...........................          354  81.............          601
42...........................          383  82.............          651
43...........................          409  83.............          705
44...........................          437  84.............          764
45...........................          463  85.............          828
46...........................          500  86.............          897
47...........................          536  87.............          971
48...........................          629  88.............        1,052
49...........................          749  89.............        1,140
50...........................          878  90.............        1,235
51...........................        1,033  91.............        1,337
52...........................        1,198  92.............        1,449
53...........................        1,376  93.............        1,569
54...........................        1,566  94.............        1,700
55...........................        1,769  95.............        1,842
56...........................        2,003  96.............        1,995
57...........................        2,252  97.............        2,161
58...........................        2,515  98.............        2,341
59...........................        2,793  99.............        2,536
60...........................        3,086  100............        2,748
61...........................        3,419  101............        2,976
62...........................        3,770  102............        3,224
63...........................        4,137  103............        3,493
64...........................        4,521  104............        3,784
65...........................        4,856  105............        4,099
66...........................        5,099  106............        4,440
67...........................        5,342  107............        4,810
68...........................        5,585  108............        5,211
69...........................        5,828  109............        5,645
70...........................        6,071  110............        6,115
71...........................        6,374  111............        6,624
72...........................        6,678  112............        7,176
73...........................        6,981  113............        7,774
74...........................        7,285  114............        8,421
75...........................        7,588  115............        9,122
76...........................        7,892  116............        9,882
77...........................        8,499  117............       10,705
78...........................        9,106  118............       11,597
79...........................        9,713  119............       12,563
80...........................       10,321  120............       13,609
81...........................       11,535  121............       14,743
82...........................       12,749  122............       15,971
83...........................       13,963  123............       17,301
84...........................       15,177  124............       18,742
85...........................       16,392  125............       20,302
86...........................       18,213  126............       21,993
87...........................       20,642  127............       23,825
88...........................       23,070  128............       25,810
89...........................       25,498  129............       27,959
90...........................       27,927  130............       30,288
91...........................       30,355  131............       32,810
92...........................       33,391  132............       35,543
93...........................       36,427  133............       38,503
94...........................       39,462  134............       41,574
95...........................       42,498  135............       44,645
96...........................       45,533  136............       47,716
97...........................       48,569  137............       50,787
98...........................       51,605  138............       53,858
99...........................       54,640  139............       56,929
100..........................       60,000  140 or more....       60,000
------------------------------------------------------------------------

    The range of points in the proposed conversion table to reflects 
proposed changes in the individual criteria tables in proposed Sec.  
100.3. The minimum penalty in the proposed conversion table would be 
changed from $72 to $112. MSHA believes that this would represent a 
reasonable adjustment for many of the violations processed under the 
existing regulations as single penalty assessments. Typically, single 
penalty assessments address non-S&S and paperwork type violations. The 
maximum penalty would remain at $60,000 per violation.

[[Page 53063]]

    h. Effect on operator's ability to remain in business (Sec.  
100.3(h)). Existing Sec.  100.3(h) provides that MSHA presumes that the 
operator's ability to continue in business will not be affected by 
payment of a civil penalty. In addition, it provides that MSHA may 
adjust the penalty if the operator submits information to MSHA 
concerning the business financial status which shows that payment of 
the penalty will adversely affect the operator's ability to continue in 
business. MSHA is proposing several editorial changes for easier 
reading and clarity, but there would be no substantive change to 
existing Sec.  100.3(h).
4. Determination of Penalty; Single Penalty Assessment (Sec.  100.4)
    Existing Sec.  100.4 provides for a $60 penalty for non-S&S 
violations, i.e., those that are not reasonably likely to result in 
reasonably serious injury or illness. The single penalty assessment is 
available only if the violation is abated within the time set by the 
inspector and the operator does not have an excessive history of 
violations. The existing provision defines excessive violation history.
    MSHA is proposing to delete the single penalty assessment provision 
in Sec.  100.4 based on an evaluation of agency data and a review of 
experience gained under the provision. The primary focus of the Mine 
Act, as reiterated in the MINER Act, is on the prevention and 
correction of violative conditions before they occur and the 
improvement of the safety and health of miners. MSHA believes that 
deletion of the single penalty provision will have a positive impact on 
miner safety and health. MSHA believes that deleting the single penalty 
provision will provide a greater incentive for mine operators to abate 
hazards. The Agency believes that deleting the single penalty provision 
will cause mine operators to focus their attention on preventing all 
hazardous conditions before they occur and promptly correct those 
violations that do occur. Therefore, MSHA is proposing to delete the 
single penalty provision.
5. Unwarrantable Failure (Sec.  100.4)
    Proposed Sec.  100.4 would implement the MINER Act requirements 
related to minimum unwarrantable failure penalties. Section 8(a)(1)(B) 
of the MINER Act amends the Mine Act by setting a minimum penalty of 
$2,000 for any citation or order issued under section 104(d)(1) and a 
minimum penalty of $4,000 for any order issued under section 104(d)(2).
6. Determination of Penalty; Special Assessment (Sec.  100.5)
    Existing Sec.  100.5 provides for a special assessment for those 
violations which MSHA believes should not be processed under the 
provision for a single penalty assessment or under the regular 
assessment provision.
    Consistent with the proposal to delete the single penalty 
provision, MSHA is proposing to revise the first sentence in paragraph 
(a) of this section. The revision would remove the reference to the 
single assessment provision. MSHA proposes to remove the second 
sentence in existing paragraph (a) of Sec.  100.5 that provides a 
general explanation stating when a special assessment would be applied. 
This sentence is ``Although an effective penalty can generally be 
derived by using the regular assessment formula and the single 
assessment provision, some types of violations may be of such a nature 
or seriousness that it is not possible to determine an appropriate 
penalty under these provisions.'' This sentence is unnecessary because 
the first sentence specifies that it is within MSHA's discretion to 
waive the regular assessment depending upon the conditions surrounding 
the violation.
    MSHA proposes to remove the list of eight categories of violations 
that will be reviewed for possible special assessment under existing 
Sec.  100.5(b). As stated in existing and proposed Sec.  100.5(a), MSHA 
has the discretion to waive the regular assessment formula if it 
determines that conditions warrant a special assessment for any type of 
violation. The existing list of eight categories of violations that 
MSHA would review, although not intended to be exclusive, resulted in a 
time-consuming and resource-intensive process. Under the proposed rule, 
MSHA would retain its discretion to determine which types of violations 
would be reviewed for a special assessment, without being limited to a 
specific list. MSHA anticipates that, under the proposal, the regular 
assessment provision would generally provide an appropriate penalty in 
most cases. This change will allow MSHA to focus its enforcement 
resources on more field enforcement activities, as opposed to 
administrative review activities. There would be circumstances, 
however, in which the regular assessment would not provide an 
appropriate penalty and thus the special assessment provision would be 
applied.
    Changes in proposed Sec.  100.5(b) would provide for easier reading 
and clarity and would be revised to include references to sections 
105(b) and 110(i) of the Mine Act. The reference to Sec.  100.4(b) 
would be removed as the single penalty provision would be deleted. 
Paragraphs (c) and (d) would remain unchanged.
    Proposed paragraphs (e) and (f) would implement new civil penalty 
provisions of the MINER Act. New paragraph (e) addresses penalties for 
flagrant violations. Under the MINER Act amendments to the Mine Act, 
violations that are deemed to be flagrant may be assessed a civil 
penalty of not more than $220,000. A ``flagrant'' violation is defined 
as a reckless or repeated failure to make reasonable efforts to 
eliminate a known violation of a mandatory health or safety standard 
that substantially and proximately caused, or reasonably could have 
been expected to cause, death or serious bodily injury. Under the 
proposal these violations would be processed as a special assessment.
    New paragraph (f) addresses penalties related to prompt incident 
not