Criteria and Procedures for Assessment of Civil Penalties, 44493-44518 [2014-17935]

Download as PDF Vol. 79 Thursday, No. 147 July 31, 2014 Part II Department of Labor wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 Mine Safety and Health Administration 30 CFR Part 100 Criteria and Procedures for Assessment of Civil Penalties; Proposed Rule VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\31JYP2.SGM 31JYP2 44494 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules DEPARTMENT OF LABOR SUPPLEMENTARY INFORMATION: Mine Safety and Health Administration Table of Contents 30 CFR Part 100 [Docket No. MSHA–2014–0009] RIN 1219–AB72 Criteria and Procedures for Assessment of Civil Penalties Mine Safety and Health Administration, Labor. ACTION: Proposed rule. AGENCY: The Mine Safety and Health Administration (MSHA) is proposing to amend its civil penalty regulation to simplify the criteria, which will promote consistency, objectivity, and efficiency in the proposed assessment of civil penalties and facilitate the resolution of enforcement issues. The proposal would place a greater emphasis on the more serious safety and health conditions and provide improved safety and health for miners. MSHA is also proposing alternatives that would address the scope and applicability of its civil penalty regulation. DATES: All comments must be received or postmarked by midnight Eastern Daylight Saving Time on September 29, 2014. ADDRESSES: Comments and informational materials must be identified with ‘‘RIN 1219–AB72’’ and sent to MSHA by one of the following methods: • Federal E-Rulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments for Docket Number MSHA– 2014–0009. • Electronic Mail: zzMSHAcomments@dol.gov. Include ‘‘RIN 1219– AB72’’ in the subject line of the message. • Mail: MSHA, Office of Standards, Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209–3939. • Facsimile: 202–693–9441. • Hand Delivery or Courier: MSHA, Office of Standards, Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209– 3939, between 9:00 a.m. and 5:00 p.m. Monday through Friday, except Federal holidays. For hand delivery, sign in at the receptionist’s desk on the 21st floor. FOR FURTHER INFORMATION CONTACT: Sheila A. McConnell, Acting Director, Office of Standards, Regulations, and Variances, MSHA, at mcconnell.sheila.a@dol.gov (email); 202–693–9440 (voice); or 202–693–9441 (facsimile). wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 SUMMARY: VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 I. Availability of Information II. Background A. Statutory Background B. Regulatory Background III. Section-by-Section Analysis A. §§ 100.1 and 100.2; Scope and Purpose; Applicability B. General Discussion of § 100.3 C. § 100.3(b) The Appropriateness of the Penalty to the Size of the Business of the Operator Charged D. § 100.3(c) History of Previous Violations E. § 100.3(d) Negligence F. § 100.3(e) Gravity G. § 100.3(f) Demonstrated Good Faith of the operator in abating the violation H. § 100.3(g) Penalty Conversion Table I. § 100.3(h) The Effect of the Penalty on the Operator’s Ability to Continue in Business J. § 100.4 Unwarrantable Failure and Immediate Notification IV. Proposed Alternatives to Change the Scope, Purpose, and Applicability of this Part A. Regulatory Background and Commission Precedent B. Proposed Alternatives to the Existing Approach to §§ 100.1 and 100.2 V. Preliminary Regulatory Economic Analysis A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Population at Risk C. Benefits D. Projected Impacts VI. Feasibility VII. Regulatory Flexibility Analysis and Small Business Regulatory Enforcement Fairness Act A. Definition of a Small Mine B. Factual Basis for Certification VIII. Paperwork Reduction Act of 1995 IX. Other Regulatory Considerations A. The Unfunded Mandates Reform Act of 1995 B. Executive Order 13132: Federalism C. The Treasury and General Government Appropriations Act of 1999: Assessment of Federal Regulations and Policies on Families D. Executive Order 12630: Government Actions and Interference With Constitutionally Protected Property Rights E. Executive Order 12988: Civil Justice Reform F. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. Executive Order 13272: Proper Consideration of Small Entities in Agency Rulemaking PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 I. Availability of Information Public Comments: MSHA posts all comments without change, including any personal information provided. Access comments electronically at http://www.msha.gov/ currentcomments.asp and on http:// www.regulations.gov. Review comments in person at the Office of Standards, Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia. Sign in at the receptionist’s desk on the 21st floor. Email Notification: MSHA maintains a list that enables subscribers to receive an email notification when the Agency publishes rulemaking documents in the Federal Register. To subscribe, go to http://www.msha.gov/subscriptions/ subscribe.aspx. II. Background A. Statutory Background Section 104 of the Federal Mine Safety and Health Act of 1977 (Mine Act) requires MSHA to issue citations or orders to mine operators for any violations of a mandatory safety or health standard, rule, order, or regulation promulgated under the Mine Act. On issuing a citation or order, the Secretary’s authorized representative (inspector) specifies a time for the safety or health condition to be abated. Sections 105 and 110 of the Mine Act require MSHA to propose a civil penalty for these violations. The Mine Act further requires assessment of civil penalties for violations. The following six criteria listed in §§ 105(b)(1)(B) and 110(i) of the Mine Act are used to determine civil 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. 30 U.S.C. 815(b)(1)(B), 820(i). MSHA proposes a civil penalty assessment for each violation. On receipt of the proposed assessment, the mine operator 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 E:\FR\FM\31JYP2.SGM 31JYP2 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules becomes a final order of the Commission. If the mine operator chooses to contest the proposed penalty, the matter proceeds to a hearing before a Commission administrative law judge (ALJ). The ALJ then ‘‘issue[s] an order, based on findings of fact, affirming, modifying, or vacating the Secretary’s citation, order, or proposed penalty.’’ 30 U.S.C. 815(d). The decision of the ALJ becomes the final order of the Commission unless the Commission decides to grant discretionary review within 40 days. 30 U.S.C. 823. B. Regulatory Background MSHA’s civil penalty regulation at 30 CFR part 100 provides two methods for proposing civil penalties: regular formula assessments and special assessments. The regular assessment method, under which MSHA applies the civil penalty formula in §§ 100.3 and 100.4 to each violation, provides an appropriate proposed penalty for most violations. The special assessment method, in which MSHA manually applies the statutory penalty criteria, is used in a much smaller number of cases, such as those involving fatalities or willful violations. See § 100.5. This proposed rule involves changes to MSHA’s regular assessment penalty formula only. Because the proposed rule would require MSHA to change the Citation/Order form (MSHA Form 7000– 3), and MSHA considers the inspector’s evaluations of the criteria in proposing penalties, the proposed rule also may have an indirect impact on special assessments. Since 2010, MSHA has implemented special initiatives and promulgated rules to enhance accountability of mine operators for violations and hazards at their mines. MSHA intended that its actions would encourage mine operators to find and fix conditions and practices that could lead to violations of a safety or health standard meant to prevent hazardous conditions or practices. One initiative, ‘‘Rules to Live By,’’ identified the types of violations most likely to lead to an accident, injury, or illness. MSHA began conducting impact inspections at appropriate mines to focus attention on prevention of hazards and prompt, continuing correction of violations. MSHA believes that its efforts have worked. Although the total number of mining operations in the United States decreased by approximately 0.5 percent from 2010 to 2013 (from 13,830 in 2010 to 13,760 in 2013), the number of violations for which MSHA proposed a regular formula assessment decreased by approximately 26 percent (from 164,500 in 2010 to 121,100 in 2013) and the percentage of violations contested decreased by approximately 6 percent (from 26 percent in 2010 to 20 percent in 2013). Reduced numbers of violations, however, does not preclude the need for improvement in the civil penalty assessment process. MSHA analyzed the impact of the proposed rule by the type of mine and size of mine. The distribution of the penalty amount by mine size would remain generally the same; however, the penalty amount for small M/NM mines would decrease. III. Section-by-Section Analysis A. §§ 100.1 and 100.2; Scope and Purpose; Applicability Existing §§ 100.1 and 100.2 limit the scope and applicability of part 100 to proposed civil penalties only. To enhance consistency and predictability in the assessment of civil penalties, MSHA is considering alternatives that would broaden the scope and applicability of part 100 to include both proposed and assessed penalties. Section IV of this preamble explains these alternatives and their rationale. B. General Discussion of § 100.3 MSHA’s proposal to amend § 100.3 is guided by four key principles: (1) Improvement in consistency, objectivity, and efficiency in how inspectors write citations and orders by reducing the number of decisions needed; 44495 (2) Simplification of penalty criteria, which should lead to fewer areas of dispute and earlier resolution of enforcement issues; (3) Greater emphasis on the more serious safety and health conditions; and (4) Openness and transparency in the application of the Agency’s regular formula penalty criteria. When issuing citations or orders, inspectors are required to evaluate safety and health conditions and to make decisions about five of the six statutory criteria. The proposed rule would simplify the gravity and negligence criteria and place an increased emphasis on the more serious hazards. Simplifying the criteria would increase objectivity and clarity in the citation and order process. The proposed changes should result in fewer areas of disagreement and earlier resolution of enforcement issues. The proposal would require corresponding changes to the Mine Citation/Order form (MSHA Form 7000–3). The proposal is structured to encourage operators to be more accountable and proactive in addressing safety and health conditions at their mines. Under the proposal, total penalties proposed by MSHA would remain generally the same. The proposal would place an increased emphasis on Negligence, Violation History, and the Severity factor of Gravity to more appropriately address factors that directly impact miner safety and health. The proposal would place less emphasis on mine size, with slightly less emphasis on controller and contractor sizes. Table 1 below shows the existing and proposed penalty point ranges for each of the criteria, including penalty point ranges as a percentage of the total maximum points under the existing and proposed rules. Proposed § 100.3 would reduce the maximum number of penalty points that could be assigned from 208 under the existing rule to 100. TABLE 1—EXISTING AND PROPOSED PENALTY POINT RANGES Existing rule wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 Criteria VerDate Mar<15>2010 15:27 Jul 30, 2014 Penalty point range as a percentage of total maximum points**(***) Penalty point range Mine Size ...................................... Controller Size .............................. Contractor Size * .......................... TOTAL Size Criterion ............ Overall Violations .......................... Repeat Violations ......................... TOTAL Violation History Criterion. 0 1 0 0 0 0 0 to to to to to to to Jkt 232001 15 10 25 25 25 20 45 .............. .............. .............. .............. .............. .............. .............. PO 00000 Proposed rule 0% to 7% ..................................... 0.5% to 5% .................................. 0% to 12% ................................... 0% to 12% ................................... 0% to 12% ................................... 0% to 10% ................................... 0% to 22% ................................... Frm 00003 Fmt 4701 Sfmt 4702 Penalty point range 0 1 0 0 0 0 0 to to to to to to to 4 ................ 4 ................ 8 ................ 8 ................ 16 .............. 10 .............. 26 .............. E:\FR\FM\31JYP2.SGM 31JYP2 Penalty point range as a percentage of total maximum points*** 0% 1% 0% 0% 0% 0% 0% to to to to to to to 4%. 4%. 8%. 8%. 16%. 10%. 26%. 44496 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules TABLE 1—EXISTING AND PROPOSED PENALTY POINT RANGES—Continued Existing rule Criteria Penalty point range as a percentage of total maximum points**(***) Penalty point range TOTAL Negligence Criterion Likelihood ...................................... Severity ......................................... Persons Affected .......................... TOTAL Gravity Criterion ........ Total Maximum Points ........... 0 to 0 to 0 to 0 to 0 to 208 Proposed rule 50 .............. 50 .............. 20 .............. 18 .............. 88 .............. .................... 0% to 24% ................................... 0% to 24% ................................... 0% to 10% ................................... 0% to 9% ..................................... 0% to 42% ................................... ...................................................... Penalty point range 0 to 0 to 0 to 0 to 0 to 100 30 .............. 25 .............. 10 .............. 1 ................ 36 .............. Penalty point range as a percentage of total maximum points*** 0% 0% 0% 0% 0% to to to to to 30%. 25%. 10%. 1%. 36%. * Points for contractor size equal the sum of the points for mine and controller sizes for operators. ** Maximum points add to over 100 percent due to rounding. *** Conversion uses 208 points for the existing rule and 100 points for the proposed rule. In developing the proposal, MSHA evaluated the impact of the proposed changes using actual violation data. MSHA analyzed the 121,089 violations for which the Agency proposed assessments under the existing regular formula between January 1, 2013 and December 31, 2013 (baseline), the most recent year of available data. MSHA compared the impact of the proposed changes on individual penalties and on total penalties. First, the relative weights of the existing criteria were established as a benchmark by calculating the total points associated with each criterion as a percentage of total penalty points for all violations assessed against mine operators and independent contractors during the baseline period. Next, MSHA applied the proposed criteria to each violation assessed during the baseline period. For some criteria (e.g., Size and Violation History), the calculation was straightforward. For other criteria (e.g., Negligence and Gravity), MSHA made assumptions about how the inspector would evaluate degrees of negligence and gravity and allocated proposed penalty points so that the aggregate civil penalty amount proposed under the proposed rule would be comparable to the aggregate civil penalty amount proposed under the existing rule. Finally, the relative weight of each proposed criterion was determined by calculating total points associated with each criterion as a percentage of total penalty points that would have been assessed if the proposed rule had been in effect during the baseline period. The results of this analysis are presented in Table 2 below. TABLE 2—COMPARISON OF RELATIVE WEIGHTS OF CRITERIA UNDER THE EXISTING AND PROPOSED RULES Existing rule Proposed rule Criteria Penalty points for criterion % of total penalty points Penalty points for criterion Mine Size ............................................................................. Controller Size ..................................................................... Contractor Size .................................................................... TOTAL Size Criterion ................................................... Overall Violations * ............................................................... Repeat Violations ................................................................ TOTAL Violation History Criterion * .............................. TOTAL Negligence Criterion * ...................................... Likelihood ............................................................................. Severity * .............................................................................. Persons Affected ................................................................. TOTAL Gravity Criterion ............................................... TOTAL Penalty Points for 121,089 violations .............. 853,482 ................. 661,044 ................. 56,077 ................... 1,570,603 .............. 758,394 ................. 145,111 ................. 903,505 ................. 2,350,120 .............. 1,799,400 .............. 953,235 ................. 228,835 ................. 2,981,470 .............. 7,805,698 .............. 10.9 ....................... 8.5 ......................... 0.7 ......................... 20.1 ....................... 9.7 ......................... 1.9 ......................... 11.6 ....................... 30.1 ....................... 23.1 ....................... 12.2 ....................... 2.9 ......................... 38.2 ....................... ............................... 218,902 ................. 272,712 ................. 15,762 ................... 507,376 ................. 517,410 ................. 78,154 ................... 595,564 ................. 1,510,485 .............. 461,820 ................. 651,120 ................. 114,994 ................. 1,227,934 .............. 3,841,359 .............. % of total penalty points 5.7 7.1 0.4 13.2 13.5 2.0 15.5 39.3 12.0 17.0 3.0 32.0 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 * Proposal would increase the criterion’s relative weight as a percentage of all penalty points. MSHA’s analysis indicates that the relative weights of penalty criteria would change under the proposed rule. The relative weights of the Size criterion, which reflects mine size, controller size, and contractor size, and the Gravity criterion, which reflects likelihood, severity, and persons affected, would decrease under the proposal. Although the total relative weight of the Gravity criterion would decrease, the relative weight of the Severity factor of the Gravity criterion would increase to reflect MSHA’s VerDate Mar<15>2010 17:26 Jul 30, 2014 Jkt 232001 increased emphasis on more serious hazards. The relative weights of the Violation History criterion, which reflects overall violations plus repeat violations, and the Negligence criterion would increase under the proposal. C. § 100.3(b) The Appropriateness of the Penalty to the Size of the Business of the Operator Charged Proposed § 100.3(b) would reduce the penalty points for operator and contractor size. The existing rule contains five tables assigning penalty PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 points for size of coal mines, controlling entities of coal mines, metal and nonmetal mines (M/NM), controlling entities of M/NM mines, and independent contractors. The size of coal mines and their controlling entities is measured by the amount of coal production. The size of M/NM 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 contractor at all mines E:\FR\FM\31JYP2.SGM 31JYP2 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules regardless of the commodity being mined. Existing § 100.3(b) assigns up to 15 penalty points for mine size, up to 10 penalty points for the size of the controlling entity, and up to 25 penalty points for the size of independent contractors. Under this provision, MSHA proposes to reduce the penalty points for mine size and controlling entity and decrease the number of penalty points for operators and independent contractors. The maximum number of penalty points would decrease from 15 to 4 for mine size, from 10 to 4 for size of controlling entity, and from 25 to 8 for size of independent contractor. As seen in Table 1 of this preamble, this proposed change would decrease the maximum points for this criterion as a percentage of total maximum points, from 12 percent (25/208) under the existing rule to 8 percent (8/100) under the proposed rule. As seen in Table 2 of this preamble, the proposed rule would decrease the relative weight of mine size (i.e., from 10.9 percent of total penalty 44497 points under the existing rule to 5.7 percent under the proposal); controller size (i.e., from 8.5 percent of total penalty points under the existing rule to 7.1 percent under the proposal); and contractor size (i.e., from 0.7 percent of total penalty points under the existing rule to 0.4 percent under the proposal). Refer to section VII.B. Factual Basis for Certification of this preamble for the explanation of MSHA’s evaluation of the projected impact of the proposal on small entities. PART 100 TABLE I—SIZE OF COAL MINE Existing rule Proposed rule Penalty points (out of maximum 208 points) Annual tonnage of mine (× 1,000) 0 to 7.5 ................................................................... >7.5 to 10 ............................................................... >10 to 15 ................................................................ >15 to 20 ................................................................ >20 to 30 ................................................................ >30 to 50 ................................................................ >50 to 70 ................................................................ >70 to 100 .............................................................. >100 to 200 ............................................................ >200 to 300 ............................................................ >300 to 500 ............................................................ >500 to 700 ............................................................ >700 to 1,000 ......................................................... >1,000 to 2,000 ...................................................... >2,000 .................................................................... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Annual tonnage of mine (× 1,000) Penalty points (out of maximum 100 points) 0 to 50 .................................................................... 1 >50 to 500 .............................................................. 2 >500 to 1,000 ......................................................... 3 >1,000 .................................................................... 4 PART 100 TABLE II—SIZE OF CONTROLLING ENTITY—COAL MINE Existing rule Proposed rule Penalty points (out of maximum 208 points) Annual tonnage (× 1,000) 0 to 50 .................................................................... >50 to 100 .............................................................. >100 to 200 ............................................................ >200 to 300 ............................................................ >300 to 500 ............................................................ >500 to 700 ............................................................ >700 to 1,000 ......................................................... >1,000 to 3,000 ...................................................... >3,000 to 10,000 .................................................... >10,000 .................................................................. 1 2 3 4 5 6 7 8 9 10 Annual tonnage (× 1,000) Penalty points (out of maximum 100 points) 0 to 200 .................................................................. 1 >200 to 700 ............................................................ 2 >700 to 3,000 ......................................................... 3 >3,000 .................................................................... 4 PART 100 TABLE III—SIZE OF METAL/NONMETAL MINE wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 Existing rule Proposed rule Annual hours worked at mine (× 1,000) Penalty points (out of maximum 208 points) 0 to 5 ...................................................................... >5 to 10 .................................................................. >10 to 20 ................................................................ >20 to 30 ................................................................ >30 to 50 ................................................................ >50 to 100 .............................................................. >100 to 200 ............................................................ >200 to 300 ............................................................ VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 PO 00000 0 1 2 3 4 5 6 7 Frm 00005 Fmt 4701 Annual tonnage of mine (× 1,000) Penalty points (out of maximum 100 points) 0 to 5 ...................................................................... 0 >5 to 200 ................................................................ 1 Sfmt 4702 E:\FR\FM\31JYP2.SGM 31JYP2 44498 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules PART 100 TABLE III—SIZE OF METAL/NONMETAL MINE—Continued Existing rule Proposed rule Annual hours worked at mine (× 1,000) Penalty points (out of maximum 208 points) >300 to 500 ............................................................ >500 to 700 ............................................................ >700 to 1,000 ......................................................... >1,000 to 1,500 ...................................................... >1,500 to 2,000 ...................................................... >2,000 to 3,000 ...................................................... >3,000 to 5,000 ...................................................... >5,000 .................................................................... 8 9 10 11 12 13 14 15 Annual tonnage of mine (× 1,000) Penalty points (out of maximum 100 points) >200 to 1,500 ......................................................... 2 >1,500 to 3,000 ...................................................... 3 >3,000 .................................................................... 4 PART 100 TABLE IV—SIZE OF CONTROLLING ENTITY—METAL/NONMETAL MINE Existing rule Proposed rule Penalty points (out of maximum 208 points) Annual hours worked (× 1,000) 0 to 50 .................................................................... >50 to 100 .............................................................. >100 to 200 ............................................................ >200 to 300 ............................................................ >300 to 500 ............................................................ >500 to 1,000 ......................................................... >1,000 to 2,000 ...................................................... >2,000 to 3,000 ...................................................... >3,000 to 5,000 ...................................................... >5,000 to 10,000 .................................................... >10,000 .................................................................. 0 1 2 3 4 5 6 7 8 9 10 Annual hours worked (× 1,000) Penalty points (out of maximum 100 points) 0 to 50 .................................................................... 0 >50 to 300 .............................................................. 1 >300 to 2,000 ......................................................... 2 >2,000 to 5,000 ...................................................... 3 >5,000 .................................................................... 4 PART 100 TABLE V—SIZE OF INDEPENDENT CONTRACTOR Existing rule Proposed rule Penalty points (out of maximum 208 points) Annual hours worked at all mines (× 1,000) 0 to 5 ...................................................................... >5 to 7 .................................................................... >7 to 10 .................................................................. >10 to 20 ................................................................ >20 to 30 ................................................................ >30 to 50 ................................................................ >50 to 70 ................................................................ >70 to 100 .............................................................. >100 to 200 ............................................................ >200 to 300 ............................................................ >300 to 500 ............................................................ >500 to 700 ............................................................ >700 to 1,000 ......................................................... >1,000 .................................................................... wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 D. § 100.3(c) History of Previous Violations The proposal would revise § 100.3(c), history of previous violations, to increase the penalty points for this criterion as a percentage of total penalty points. Existing § 100.3(c) bases the operator’s violation history on the total number of violations and the number of repeat violations of the same citable provision of a standard in the 15-month VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 0 2 4 6 8 10 12 14 16 18 20 22 24 25 Annual hours worked at all mines (× 1,000) 0 to 5 ...................................................................... >5 to 10 .................................................................. 0 1 >10 to 30 ................................................................ 2 >30 to 70 ................................................................ 3 >70 to 200 .............................................................. 4 >200 to 500 ............................................................ 5 >500 to 700 ............................................................ >700 to 1,000 ......................................................... >1,000 .................................................................... 6 7 8 period preceding the occurrence date of the violation being assessed. The existing rule states that only ‘‘violations that have been paid, finally adjudicated, or have become final orders of the Commission’’ (final orders) are included in determining an operator’s violation history. MSHA is proposing to clarify its intent under the existing rule that only ‘‘violations that have become final orders of the Commission’’ are included in determining an operator’s violation PO 00000 Frm 00006 Fmt 4701 Penalty points (out of maximum 100 points) Sfmt 4702 history. This proposed change is nonsubstantive and would reduce confusion and more accurately reflect the Agency’s intent to use only violations that became final orders during the 15-month period preceding the occurrence date of the violation being assessed in calculating violation history. Under the existing rule, operators are assigned penalty points based on the number of Violations Per Inspection Day E:\FR\FM\31JYP2.SGM 31JYP2 44499 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules and the number of Repeat Violations Per Inspection Day. For independent contractors, penalty points are assigned on the basis of the total number of violations and total number of repeat violations at all mines. MSHA is proposing to clarify paragraph (c) by removing the reference to paragraph (c)(2) and stating directly in paragraph (c)(2) when the repeat aspect of the Violation History criterion applies. As shown in Table 2 of this preamble, the proposed changes would increase the relative weight for the History of Violations criterion penalty points from 11.6 percent of total penalty points under the existing rule to 15.5 percent under the proposed rule. The relative weight for overall violations penalty points would increase from 9.7 percent of total penalty points under the existing rule to 13.5 percent under the proposal, in recognition of the importance of the need for operators to prevent violations from occurring. The relative weight for repeat violations penalty points would remain unchanged at approximately 2 percent of total penalty points under the existing and proposed rules. 1. History of Overall Violations MSHA is proposing to change how an operator’s overall violation history would be determined. The Violations Per Inspection Day formula under the existing rule may result in relatively high violation history points that do not reflect conditions at the smaller M/NM operations. At these mines, a small number of violations over a one or twoday inspection can result in a relatively high Violations Per Inspection Day rate. During the baseline period, 12 percent of the M/NM violations received the maximum 25 points compared with one percent of the coal violations. MSHA’s proposed revision would address this concern. Tables 3 and 4 below show the distributions of penalty points for Violations Per Inspection Day for mines under the existing and the proposed rules. TABLE 3—EXISTING DISTRIBUTION OF PENALTY POINTS FOR VIOLATIONS PER INSPECTION DAY Points Coal mines M/NM mines Total 0 ........................................................................................... 2 ........................................................................................... 5 ........................................................................................... 8 ........................................................................................... 10 ......................................................................................... 12 ......................................................................................... 14 ......................................................................................... 16 ......................................................................................... 19 ......................................................................................... 22 ......................................................................................... 25 ......................................................................................... 8,713 10,816 15,917 11,590 5,240 3,449 2,543 1,124 655 318 589 14% 18% 26% 19% 9% 6% 4% 2% 1% 1% 1% 28,042 1,322 2,432 2,543 2,784 2,319 1,895 1,519 1,296 1,016 6,215 55% 3% 5% 5% 5% 5% 4% 3% 3% 2% 12% 36,755 12,138 18,349 14,133 8,024 5,768 4,438 2,643 1,951 1,334 6,804 Total .............................................................................. 60,954 ........................ 51,383 ........................ 112,337 TABLE 4—PROJECTED DISTRIBUTION OF PENALTY POINTS FOR VIOLATIONS PER INSPECTION DAY UNDER THE PROPOSED RULE Points Coal mines M/NM mines Total 8,862 10,816 15,917 11,590 5,237 3,433 2,529 1,113 628 312 517 15% 18% 26% 19% 9% 6% 4% 2% 1% 1% 1% 34,519 1,322 2,432 2,543 2,694 2,020 1,432 1,060 831 607 1,923 67% 3% 5% 5% 5% 4% 3% 2% 2% 1% 4% 43,381 12,138 18,349 14,133 7,931 5,453 3,961 2,173 1,459 919 2,440 Total .............................................................................. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 0 ........................................................................................... 2 ........................................................................................... 5 ........................................................................................... 8 ........................................................................................... 10 ......................................................................................... 11 ......................................................................................... 12 ......................................................................................... 13 ......................................................................................... 14 ......................................................................................... 15 ......................................................................................... 16 ......................................................................................... 60,954 ........................ 51,383 ........................ 112,337 The proposed rule would provide for a more equitable impact of the Violations Per Inspection Day formula on small mines. The existing rule assigns zero points when a mine has fewer than 10 violations that became final orders over the 15-month period preceding the occurrence date of the violation being assessed. Under the proposal, MSHA would assign zero points when a mine has either fewer than 10 violations or 10 or fewer inspection days over the 15-month VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 period preceding the occurrence date of the violation being assessed. MSHA analyzed this approach using historical data from the baseline period and determined that although it would reduce the impact of Violations Per Inspection Day on smaller mines, it would continue to hold operators of small mines accountable for repeat violations. MSHA is proposing to restructure the point tables related to Violation History to reflect a modest increase in the PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 relative weight of this criterion. Part 100 Table VI shows both the existing and proposed point schedules for overall history of violations for mine operators. Part 100 Table VII shows both the existing and proposed point schedules for overall history of violations for independent contractors. Under the proposal, the maximum number of penalty points for Violation History would decrease from 25 to 16 for both mine operators and independent contractors. E:\FR\FM\31JYP2.SGM 31JYP2 44500 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules PART 100 TABLE VI—HISTORY OF PREVIOUS VIOLATIONS—MINE OPERATORS* Existing penalty points (out of maximum 208 points) Overall history: number of violations per inspection day 0 to 0.3 ......................................................................................................................................................... >0.3 to 0.5 ................................................................................................................................................... >0.5 to 0.7 ................................................................................................................................................... >0.7 to 0.9 ................................................................................................................................................... >0.9 to 1.1 ................................................................................................................................................... >1.1 to 1.3 ................................................................................................................................................... >1.3 to 1.5 ................................................................................................................................................... >1.5 to 1.7 ................................................................................................................................................... >1.7 to 1.9 ................................................................................................................................................... >1.9 to 2.1 ................................................................................................................................................... >2.1 .............................................................................................................................................................. Proposed penalty points (out of maximum 100 points) 0 2 5 8 10 12 14 16 19 22 25 0 2 5 8 10 11 12 13 14 15 16 * Under the proposal, MSHA would assign zero points when a mine has either fewer than 10 violations that became final orders or 10 or fewer inspection days over the 15-month period preceding the occurrence date of the violation being assessed. PART 100 TABLE VII—HISTORY OF PREVIOUS VIOLATIONS—INDEPENDENT CONTRACTORS* Existing rule Proposed rule Penalty points (out of maximum 208 points) Overall history: number of violations at all mines 0 to 5 .......................................................................................................................... 6 ................................................................................................................................. 7 ................................................................................................................................. 8 ................................................................................................................................. 9 ................................................................................................................................. 10 ............................................................................................................................... 11 ............................................................................................................................... 12 ............................................................................................................................... 13 ............................................................................................................................... 14 ............................................................................................................................... 15 ............................................................................................................................... 16 ............................................................................................................................... 17 ............................................................................................................................... 18 ............................................................................................................................... 19 ............................................................................................................................... 20 ............................................................................................................................... 21 ............................................................................................................................... 22 ............................................................................................................................... 23 ............................................................................................................................... 24 ............................................................................................................................... 25 ............................................................................................................................... 26 ............................................................................................................................... 27 ............................................................................................................................... 28 ............................................................................................................................... 29 ............................................................................................................................... >29 ............................................................................................................................. Overall history: number of violations at all mines 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Penalty points (out of maximum 100 points) 0 to 5 6–7 0 1 8–9 2 10–11 3 12–13 4 14–15 5 16–17 6 18–19 7 20–21 8 22–23 9 24 25 26 27 28 29 >29 10 11 12 13 14 15 16 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 * Under the proposal, MSHA would assign zero points when an independent contractor has fewer than six violations that became final orders over the 15-month period preceding the occurrence date of the violation being assessed. MSHA is interested in alternatives that address the proposed point tables for Violation History for mine operators and independent contractors. MSHA is particularly interested in alternatives that address the impact of the proposed Violations Per Inspection Day formula on small mine operators with fewer than 10 violations that became final orders or 10 or fewer inspection days over the 15month period preceding the occurrence date of the violation being assessed. Commenters are requested to be specific VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 in their comments and submit detailed rationale and supporting documentation for any suggested alternative. 2. History of Repeat Violations The proposed rule would clarify that the repeat violations aspect of the proposal would apply only after— • A mine operator has, over the 15month period preceding the occurrence date of the violation being assessed— Æ A minimum of 10 violations, which became final orders, and Æ More than 10 inspection days, and PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 Æ Six repeat violations of the same citable provision of a standard, which became final orders; or • An independent contractor has, over the 15-month period preceding the occurrence date of the violation being assessed— Æ A minimum of six violations at all mines, which became final orders, and Æ Six repeat violations of the same citable provision of a standard, which became final orders. MSHA proposes to revise the point tables for repeat violations of the same E:\FR\FM\31JYP2.SGM 31JYP2 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules standard to reduce the penalty points from a maximum of 20 points to a maximum of 10 points. This proposed change would not result in a change in the maximum points for this criterion as a percentage of total maximum points, as it is currently 10 percent. The proposed point structure would lower the value at which a mine operator would receive the maximum penalty points for Repeat Violations Per Inspection Day from >1.0 under the existing rule to >0.5 under the proposed rule because a history of repeat violations demonstrates a lack of concern for the safety and health of miners. Higher penalties for these operators would serve to encourage 44501 them to be more proactive in their approach to safety and health and prevent safety and health hazards before they occur. Part 100 Tables VIII and IX in this preamble show both the existing and proposed point schedules for Repeat Violations. PART 100 TABLE VIII—HISTORY OF PREVIOUS VIOLATIONS—REPEAT VIOLATIONS FOR COAL AND METAL/NONMETAL MINE OPERATORS WITH A MINIMUM OF SIX REPEAT VIOLATIONS* Existing rule Proposed rule Penalty points (out of maximum 208 points) Number of repeat violations per inspection day 0 to 0.01 .................................................................. >0.01 to 0.015 ......................................................... >0.015 to 0.02 ......................................................... >0.02 to 0.025 ......................................................... >0.025 to 0.03 ......................................................... >0.03 to 0.04 ........................................................... >0.04 to 0.05 ........................................................... >0.05 to 0.06 ........................................................... >0.06 to 0.08 ........................................................... >0.08 to 0.10 ........................................................... >0.10 to 0.12 ........................................................... >0.12 to 0.14 ........................................................... >0.14 to 0.16 ........................................................... >0.16 to 0.18 ........................................................... >0.18 to 0.20 ........................................................... >0.20 to 0.25 ........................................................... >0.25 to 0.3 ............................................................. >0.3 to 0.4 ............................................................... >0.4 to 0.5 ............................................................... >0.5 to 1.0 ............................................................... >1.0 ......................................................................... 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Number of repeat violations per inspection day Penalty points (out of maximum 100 points) 0 to 0.01 ................................................................. >0.01 to 0.02 .......................................................... 0 1 >0.02 to 0.03 .......................................................... 2 >0.03 to 0.05 .......................................................... 3 >0.05 to 0.08 .......................................................... 4 >0.08 to 0.12 .......................................................... 5 >0.12 to 0.16 .......................................................... 6 >0.16 to 0.20 .......................................................... 7 >0.2 to 0.3 .............................................................. 8 >0.3 to 0.5 .............................................................. 9 >0.5 ........................................................................ 10 * Under the proposal, MSHA would assign zero points when a mine has either fewer than 10 violations that became final orders or 10 or fewer inspection days, and fewer than six repeat violations that became final orders, over the 15-month period preceding the occurrence date of the violation being assessed. PART 100 TABLE IX—HISTORY OF PREVIOUS VIOLATIONS—REPEAT VIOLATIONS FOR INDEPENDENT CONTRACTORS* Existing penalty points (out of maximum 208 points) Number of repeat violations of the same standard at all mines wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 <6 ................................................................................................................................................................. 6 ................................................................................................................................................................... 7 ................................................................................................................................................................... 8 ................................................................................................................................................................... 9 ................................................................................................................................................................... 10 ................................................................................................................................................................. 11 ................................................................................................................................................................. 12 ................................................................................................................................................................. 13 ................................................................................................................................................................. 14 ................................................................................................................................................................. >14 ............................................................................................................................................................... 0 2 4 6 8 10 12 14 16 18 20 Proposed penalty points (out of maximum 100 points) 0 1 2 3 4 5 6 7 8 9 10 * Under the proposal, MSHA would assign zero points when an independent contractor has fewer than six violations or fewer than six repeat violations that became final orders over the 15-month period preceding the occurrence date of the violation being assessed. MSHA is interested in comments that address alternatives to the proposed revisions to the point tables for Repeat Violations Per Inspection Day for mine operators and Total Number of Repeat Violations at All Mines for independent contractors. Commenters are requested VerDate Mar<15>2010 17:26 Jul 30, 2014 Jkt 232001 to be specific in their comments and submit detailed rationale and supporting documentation for any suggested alternative. PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E. § 100.3(d) Negligence Proposed § 100.3(d) would revise the negligence criterion to increase accountability for operators who either knew, or should have known, of safety and health hazards at their mines. It would reduce the number of negligence E:\FR\FM\31JYP2.SGM 31JYP2 44502 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules categories from five to three. The existing rule lists the following five categories that MSHA uses to evaluate the degree of negligence involved with a violation: (1) No Negligence means that the operator exercised diligence and could not have known of the violative condition or practice. (2) Low Negligence means that the operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances. (3) Moderate Negligence means that the operator knew or should have known of the violative condition or practice, but there are mitigating circumstances. (4) High Negligence means the operator knew or should have known of the violative condition or practice, and there are no mitigating circumstances. (5) Reckless Disregard means the operator displayed conduct that exhibits the absence of the slightest degree of care. In the majority of contested cases before the Commission, the issue is not whether a violation occurred. Rather, the parties disagree on the gravity of the violation, the degree of mine operator negligence, and other criteria. Regarding negligence, § 105(b)(1)(B) of the Mine Act requires that the Secretary determine whether the operator was negligent. MSHA believes that reducing the number of negligence categories would improve objectivity and consistency in the evaluation of negligence, resulting in fewer areas of disagreement, thereby facilitating resolution of enforcement issues. The proposal would reduce the existing five categories of negligence to three: (1) Not Negligent; (2) Negligent; or (3) Reckless Disregard. The proposed reduction in the number of categories would not change the definitions of the remaining categories, with one exception. The definition of Negligent would read that ‘‘The operator knew or should have known about the violative condition or practice.’’ The existing Mine Citation/ Order form (MSHA Form 7000–3) that MSHA inspectors use when issuing citations and orders would also be revised to reflect the proposed changes. Correspondingly, the proposed rule would restructure the point table for the proposed categories to reflect an increase in the relative weight of this criterion. MSHA believes that this proposed change would result in assessments that appropriately reflect actions under the control of operators that have a direct impact on miner safety and health. Part 100 Table X in this preamble shows the existing and proposed schedules for negligence. Under the proposal, the maximum number of penalty points for this criterion would decrease from 50 to 30 and the maximum points as a percentage of total maximum points would increase from 24 percent to 30 percent. Under the proposed rule, points for ‘‘No Negligence’’ would not change. Penalty points assigned under the remaining two categories of negligence would decrease from the values under the existing regulation. As shown in Table 2 of this preamble, MSHA’s evaluation of the impact of the proposed changes, based on baseline violation data, indicates that the relative weight of Negligence penalty points would increase from 30 percent of total penalty points under the existing rule to 39 percent of total penalty points under the proposed rule. PART 100 TABLE X—NEGLIGENCE Existing rule Proposed rule Penalty points (out of maximum 208 points) Categories wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 No Negligence (The operator exercised diligence and could not have known of the violative condition or practice.). Low Negligence (The operator knew or should have known about the violative condition or practice, but there are considerable mitigating circumstances.). Moderate Negligent (The operator knew or should have known about the violative condition or practice, but there are mitigating circumstances.). High Negligence (The operator knew or should have known about the violative condition or practice, but there are mitigating circumstances.). Reckless Disregard (The operator displayed conduct which exhibits the absence of the slightest degree of care.). MSHA is interested in comments that address alternatives to improving consistency and objectivity in the application of the proposed negligence criterion. Commenters are requested to be specific in their comments and submit detailed rationale and supporting documentation for any suggested alternative. VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 0 Not Negligent (The operator exercised diligence and could not have known of the violative condition or practice.). 0 Negligent (The operator knew or should have known about the violative condition or practice.). 15 Reckless Disregard (The operator displayed conduct which exhibits the absence of the slightest degree of care.). 30 10 20 35 50 F. § 100.3(e) Gravity Proposed § 100.3(e) would revise the existing gravity criterion to reduce the overall impact of this criterion, but increase the aspect of the criterion as it relates to more serious hazards. The existing rule provides three factors to measure the gravity of a violation: (1) the likelihood of the occurrence of an event against which a standard is directed (five categories for PO 00000 Penalty points (out of maximum 100 points) Categories Frm 00010 Fmt 4701 Sfmt 4702 a maximum of 50 points); (2) the severity of injury or illness if the event occurred or were to occur (four categories for a maximum of 20 points); and (3) the number of persons potentially affected if the event occurred or were to occur (11 categories for a maximum of 18 points). MSHA is proposing to adjust the maximum number of penalty points for the Gravity criterion from 88 total points under the E:\FR\FM\31JYP2.SGM 31JYP2 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules existing rule to 36 total points under the proposed rule and redistribute the weights of penalty points to reflect an increased emphasis on the severity of safety and health hazards. The proposed provision would retain the three Gravity factors but would reduce the number of subcategories associated with each factor. Similar to the Agency’s proposed changes to the Negligence criterion, the proposal would simplify the categories in each proposed Gravity factor to decrease subjectivity and improve objectivity and consistency. MSHA believes that the Likelihood of the occurrence of an event that could result in an injury or illness and the Severity of a potential injury or illness if the event were to occur, are both important to miner safety and health. The proposal, however, would decrease the relative weight of Likelihood penalty points and increase the relative weight of Severity penalty points as a percentage of total penalty points. Tables XI through XIII show both the existing and the proposed points for the three Gravity criterion factors. Likelihood. The proposal would reduce the existing five categories of Likelihood of the occurrence of an event against which a standard is directed to three: (1) Unlikely; (2) Reasonably Likely; or (3) Occurred. It would combine the existing categories of ‘‘No Likelihood’’ and ‘‘Unlikely’’ to improve objectivity and consistency of enforcement. Also to improve consistency, the proposal would eliminate the ‘‘Highly Likely’’ category. Part 100 Table XI would include a proposed definition for each category. These proposed changes would simplify the enforcement process, improve objectivity and consistency, and improve safety and health protection for miners. The proposal would restructure the point table to reflect a decrease in the 44503 relative weight of Likelihood. As shown in Table 2 of this preamble, MSHA’s evaluation of the impact of the proposed changes, based on baseline violation data, indicates that the relative weight of Likelihood is projected to decrease from 23.1 percent of total penalty points under the existing rule to 12.0 percent under the proposal. Part 100 Table XI in this preamble shows the existing and proposed penalty point schedule for Likelihood. The maximum number of penalty points would decrease from 50 under the existing rule to 25 under the proposal. Under the proposed rule, ‘‘Unlikely’’ would not accrue any points. The proposed penalty points assigned to ‘‘Reasonably Likely’’, as a percentage of total penalty points, would remain about the same. The proposed maximum points for Likelihood, like the existing rule, would be 25 percent of total maximum points. PART 100 TABLE XI—GRAVITY: LIKELIHOOD Existing rule Proposed rule Penalty points (out of maximum 208 points) Likelihood of occurrence 0 Unlikely ........................................ Reasonably Likely ........................ 10 30 Highly Likely ................................. Occurred ...................................... wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 No Likelihood ............................... 40 50 MSHA solicits comments on alternatives to the proposed Likelihood factor of the Gravity criterion that would improve objectivity and consistency in enforcement. Commenters are requested to be specific in their comments and submit detailed rationale and supporting documentation for any suggested alternative. Severity. The proposal would reduce the four existing categories of severity of injury or illness to three: (1) No Lost Workdays; (2) Lost Workdays or Restricted Duty; or (3) Fatal. It would eliminate the existing ‘‘Permanently Disabling’’ category, which is often difficult to anticipate. Consistent with proposed changes for other criteria, VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 Unlikely .............................................................................................. (Condition or practice cited has little or no likelihood of causing an event that could result in an injury or illness.). 0 Reasonably Likely ............................................................................. (Condition or practice cited is likely to cause an event that could result in an injury or illness.). 14 Occurred ............................................................................................ (Condition or practice cited has caused an event that has resulted or could have resulted in an injury or illness.). 25 MSHA believes that reducing the number of categories would simplify the Severity factor, resulting in improved objectivity and consistency in the enforcement process. The proposal would restructure the point table to reflect a moderate increase in the relative weight of the maximum points for Severity. Part 100 Table XII in this preamble shows the existing and proposed points for each Severity category. The proposal would reduce the maximum points for Severity from 20 points under the existing rule to 10 points. Under the proposal, points for ‘‘No Lost Work Days’’ would not change. The proposal would decrease penalty points assigned to the remaining PO 00000 Penalty points (out of maximum 100 points) Likelihood of occurrence Frm 00011 Fmt 4701 Sfmt 4702 two categories. The proposed definitions of the remaining Severity categories would not change. The proposed rule would result in no change in the maximum points for this Gravity criterion as a percentage of total maximum points, remaining at 10 percent. As shown in Table 2 of this preamble, MSHA’s evaluation of the impact of the proposed changes, based on baseline violation data, indicates that the relative weight of the Severity penalty points would increase from 12.2 percent of total penalty points under the existing rule to 17.0 percent under the proposal, appropriately reflecting the impact of the Severity factor on the safety and health of miners. E:\FR\FM\31JYP2.SGM 31JYP2 44504 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules PART 100 TABLE XII—GRAVITY: SEVERITY Existing rule Proposed rule Penalty points (out of maximum 208 points) Severity of injury or illness if the event has occurred or were to occur No lost work days ................................................... (All occupational injuries and illnesses as defined in 30 CFR Part 50 except those listed below.). Lost workdays or restricted duty ............................ (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 ............................................ (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 ........................................................................ (Any work-related injury or illness resulting in death, or which has a reasonable potential to cause death.). MSHA is particularly interested in comments that address alternatives to improve consistency and objectivity in the application of the Severity factor of the Gravity criterion. Commenters are requested to be specific in their comments and submit detailed rationale and supporting documentation for any suggested alternatives. Persons Affected. The proposed rule would simplify this Gravity factor to improve objectivity and consistency in the enforcement process. Part 100 Table XIII shows the existing and proposed penalty points for the number of persons affected. The existing Gravity factor related to persons affected is 0 5 Severity of injury or illness If the event has occurred or were to occur Penalty points (out of maximum 100 points) No lost work days .................................................. (All occupational injuries and illnesses as defined in 30 CFR Part 50 except those listed below.). Lost work days or restricted duty ........................... (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.). 0 Fatal ....................................................................... (Any work-related injury or illness resulting in death, or which has a reasonable potential to cause death.). 10 5 10 20 currently comprised of 11 categories ranging from zero persons potentially affected to 10 or more. The proposal would reduce the 11 categories into two: no persons are affected and one or more persons are affected. This proposed change would eliminate the need for MSHA inspectors to estimate how many persons potentially would be affected if the event were to occur, thereby reducing contests related to the inspector’s estimates. The proposal would revise the point table to reflect the reduction in the number of categories. Consistent with the existing rule, if no persons are affected, no points would be assigned. If persons are affected or potentially affected, one point would be assigned regardless of the number of persons. This proposed change would decrease the maximum points for this criterion as a percentage of total maximum points, from 9 percent under the existing rule to 1 percent under the proposed rule. As shown in Table 2 of this preamble, MSHA’s evaluation of the impact of the proposed changes, based on baseline violation data, indicates that the relative weight of Persons Affected penalty points would remain unchanged from the existing rule, at 3 percent of total penalty points. PART 100 TABLE XIII—GRAVITY: PERSONS POTENTIALLY AFFECTED Existing rule Number of persons potentially affected if the event has occurred or were to occur Proposed rule Penalty points (out of maximum 208 points) 0 1 2 3 4 5 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 0 ................................................... ................................................... ................................................... ................................................... ................................................... ................................................... 1 2 4 6 8 6 ................................................... 7 ................................................... 8 ................................................... 9 ................................................... 10 or more ................................... Persons potentially affected if the event has occurred or were to occur Penalty points (out of maximum 100 points) 10 12 14 16 18 MSHA is interested in comments that address alternatives to the proposed rule that would improve objectivity and consistency in the application of the Persons Affected factor of the Gravity VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 No ...................................................................................................... (No persons are affected by the condition or practice cited.) .......... 0 Yes .................................................................................................... (One or more persons are affected by the condition or practice cited.). 1 criterion. Commenters are requested to be specific in their comments and submit detailed rationale and supporting documentation for any comment or suggested alternative. PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 G. § 100.3(f) Demonstrated Good Faith of the Operator in Abating the Violation The proposal, like existing § 100.3(f), would provide for a 10 percent E:\FR\FM\31JYP2.SGM 31JYP2 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules reduction in the penalty amount of a regular assessment where the operator abates the violation within the time set by the inspector. Under the proposal, operators could save up to $8 million (based on Table 12 in this preamble) in penalty reductions for prompt abatement of violations within the time set by the inspector. In an effort to provide for increased operator focus on prevention of safety and health hazards, MSHA is considering an alternative that would recognize both prompt operator abatement of safety and health hazards as well as prompt payment of proposed penalties. Consistent with the statute, and with the prior civil penalty regulation, this alternative would provide an additional 20 percent Good Faith reduction in proposed penalties when neither the penalty nor the violation is contested and the penalty is paid before it becomes a final order of the Commission. Under this alternative, operators that promptly abate safety and health hazards and promptly pay the penalties associated with the violations could be eligible for up to a 30 percent overall Good-Faith reduction in the amount of the penalties. MSHA would provide these incentives to encourage operators to allocate more resources for the prevention of safety and health hazards. MSHA is interested in comments that address this alternative, including other alternatives that would encourage operators to resolve enforcement issues quickly and increase resources allocated to improving the safety and health of miners. Commenters are requested to be specific in their comments and submit detailed rationale and supporting documentation for any suggested alternatives. H. § 100.3(g) Penalty Conversion Table As described in the preceding sections for each of the proposed criteria, MSHA proposes to revise the penalty point tables for each criterion. The proposed penalty conversion table would retain the existing minimum penalty of $112 and the maximum penalty of $70,000 for non-flagrant violations. The proposal would reduce the maximum number of penalty points from 208 to 100. The penalty conversion table in existing § 100.3(g) converts the total penalty points associated with a citation or order into penalties starting at $112 when the point total is 60 or fewer to $70,000 when the point total is 144 or more. The proposal would revise the penalty conversion table to convert total 44505 points from ‘‘31 or fewer’’ to ‘‘73 or more’’ into penalties from $112 to $70,000, respectively. Except for the points assigned to the minimum and maximum penalty, the proposed penalty conversion table combines two methods of converting points to dollars. The lower section of the proposed table (32 to 62 points) reflects an exponential curve and the upper section (>62 to >73 points) is linear. The proposed table starts at $112 when the number of points associated with a citation or order is 31 or fewer. Each additional point from 32 up to 62 would increase the penalty dollar value by an average of 17 percent, or a range of 5 to 25 percent. The proposed penalty dollar value assigned for 62 points is $15,000. Above 62 points the proposed penalty dollar value would increase by $5,000 for each penalty point to a maximum of $70,000 at 73 or more points. MSHA’s evaluation of the impact of the proposed changes to criteria categories and the penalty points, based on baseline violation data, indicates that estimated aggregate monetary penalties under the proposed rule would remain basically the same as under the existing rule. Part 100 Table XIV below shows the existing and the proposed penalty conversion tables. PART 100 TABLE XIV—PENALTY CONVERSION TABLE Existing penalty ($) wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 Existing points 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 or fewer ........................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... .......................................................................... VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 PO 00000 112 121 131 142 154 167 181 196 212 230 249 270 293 317 343 372 403 436 473 512 555 601 651 705 764 828 897 971 1,052 1,140 1,235 1,337 Frm 00013 Fmt 4701 Proposed points 31 32 33 34 Proposed penalty ($) or fewer ........................................................... .......................................................................... .......................................................................... .......................................................................... 112 118 124 150 35 .......................................................................... 175 36 .......................................................................... 200 37 .......................................................................... 250 38 .......................................................................... 300 39 .......................................................................... 350 40 .......................................................................... 41 .......................................................................... 400 450 42 .......................................................................... 500 43 .......................................................................... 600 44 .......................................................................... 700 45 .......................................................................... 800 46 .......................................................................... 1,000 47 .......................................................................... 1,200 48 .......................................................................... 1,400 Sfmt 4702 E:\FR\FM\31JYP2.SGM 31JYP2 44506 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules PART 100 TABLE XIV—PENALTY CONVERSION TABLE—Continued Existing penalty ($) Existing points 92 .......................................................................... 93 .......................................................................... 94 .......................................................................... 95 .......................................................................... 96 .......................................................................... 97 .......................................................................... 98 .......................................................................... 99 .......................................................................... 100 ........................................................................ 101 ........................................................................ 102 ........................................................................ 103 ........................................................................ 104 ........................................................................ 105 ........................................................................ 106 ........................................................................ 107 ........................................................................ 108 ........................................................................ 109 ........................................................................ 110 ........................................................................ 111 ........................................................................ 112 ........................................................................ 113 ........................................................................ 114 ........................................................................ 115 ........................................................................ 116 ........................................................................ 117 ........................................................................ 118 ........................................................................ 119 ........................................................................ 120 ........................................................................ 121 ........................................................................ 122 ........................................................................ 123 ........................................................................ 124 ........................................................................ 125 ........................................................................ 126 ........................................................................ 127 ........................................................................ 128 ........................................................................ 129 ........................................................................ 130 ........................................................................ 131 ........................................................................ 132 ........................................................................ 133 ........................................................................ 134 ........................................................................ 135 ........................................................................ 136 ........................................................................ 137 ........................................................................ 138 ........................................................................ 139 ........................................................................ 140 ........................................................................ 141 ........................................................................ 142 ........................................................................ 143 ........................................................................ 144 or more .......................................................... wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 I. § 100.3(h) The Effect of the Penalty on the Operator’s Ability To Continue in Business Except for a non-substantive change, proposed § 100.3(h), related to the effect of the penalty on the operator’s ability to continue in business, would not change. Under the existing rule, MSHA presumes that the operator’s ability to continue in business would not be affected by the assessment of a civil penalty. Under the existing rule, the operator may submit information to the VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 1,449 1,569 1,700 1,842 1,995 2,161 2,341 2,536 2,748 2,976 3,224 3,493 3,784 4,099 4,440 4,810 5,211 5,645 6,115 6,624 7,176 7,774 8,421 9,122 9,882 10,705 11,597 12,563 13,609 14,743 15,971 17,301 18,742 20,302 21,993 23,825 25,810 27,959 30,288 32,810 35,543 38,503 41,574 44,645 47,716 50,787 53,858 56,929 60,000 63,071 66,142 69,213 70,000 Proposed points 49 .......................................................................... 1,600 50 .......................................................................... 51 .......................................................................... 1,800 2,000 52 .......................................................................... 2,500 53 .......................................................................... 3,000 54 .......................................................................... 3,500 55 .......................................................................... 4,000 56 .......................................................................... 5,000 57 .......................................................................... 58 .......................................................................... 6,000 7,000 59 .......................................................................... 60 .......................................................................... 8,000 9,000 61 .......................................................................... 10,000 62 .......................................................................... 15,000 63 .......................................................................... 20,000 64 .......................................................................... 25,000 65 .......................................................................... 30,000 66 .......................................................................... 35,000 67 .......................................................................... 40,000 68 .......................................................................... 69 .......................................................................... 45,000 50,000 70 .......................................................................... 55,000 71 .......................................................................... 60,000 72 .......................................................................... 65,000 73 or more ............................................................ 70,000 District Manager concerning the financial status of the business. The proposal would require that operators notify and submit financial information to the Office of Assessments, Accountability, Special Enforcement and Investigations (OAASEI), rather than the District Manager, that civil penalties would affect their ability to continue in business. This proposal would be a nonsubstantive change to align the proposal with MSHA’s procedures for processing PO 00000 Frm 00014 Fmt 4701 Proposed penalty ($) Sfmt 4702 financial hardship claims. Under existing procedures, MSHA’s OAASEI reviews the financial documents operators submit. This proposed change would simplify and expedite that process. J. § 100.4 Unwarrantable Failure and Immediate Notification The Mine Improvement and New Emergency Response Act (MINER Act) established minimum penalties for citations and orders issued under E:\FR\FM\31JYP2.SGM 31JYP2 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules § 104(d) of the Mine Act, that resulted from an operator’s unwarrantable failure to comply with mandatory safety and health standards. MSHA believes that operators and independent contractors who receive citations and orders designated as unwarrantable failures do not demonstrate appropriate safety and health management practices that provide for optimum safety and health conditions for miners. MSHA is proposing to increase the minimum penalties for unwarrantable failures by 50 percent to provide greater deterrence for operators who allow these types of violations to occur. The proposed rule would hold operators accountable for their actions as well as encourage more diligent compliance. Under the proposal, the minimum penalty for any citation or order issued under § 104(d)(1) of the Mine Act would be $3,000, and the minimum penalty for orders under § 104(d)(2) would be $6,000. MSHA is interested in comments that address this proposed change, including the deterrent effect on safety and health hazards. MSHA is also interested in alternatives that would improve safety and health conditions for miners. Commenters are requested to be specific in their comments and submit detailed rationale and supporting documentation for any suggested alternative. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 IV. Proposed Alternatives To Change the Scope, Purpose, and Applicability of This Part Existing §§ 100.1 and 100.2 limit the scope and applicability of 30 CFR part 100 to proposed civil penalties only. To enhance consistency and predictability in the assessment of civil penalties, MSHA is considering two alternatives that would broaden the scope and applicability of part 100 to include both proposed and assessed penalties. MSHA solicits comments on these alternatives, as well as on whether and why MSHA should retain the existing language. A. Regulatory Background and Commission Precedent The Mine Act requires that both the Secretary’s penalty proposals and the Commission’s penalty assessments reflect the same six statutory penalty criteria. The criteria are general in nature; each criterion requires further interpretation or elaboration before it can be applied to the facts of a particular case. The statute does not detail how the six statutory criteria should be balanced when determining an appropriate civil penalty. Both the exercise of proposing and the exercise of assessing an appropriate civil penalty, therefore, involve interpreting the VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 statutory penalty criteria and determining a method for balancing each criterion’s relative weight. Under the existing rule and legal precedent, MSHA and the Commission take different approaches to these tasks. 1. MSHA’s Approach to Proposing Civil Penalties MSHA’s regular assessment penalty formula interprets the six statutory civil penalty criteria and establishes a policy for balancing the criteria and arriving at a proposed penalty amount. Under existing and proposed § 100.3, MSHA interprets the six statutory penalty criteria to give each criterion more specificity. Operator History: The first statutory criterion instructs that a penalty should reflect ‘‘the operator’s history of previous violations.’’ Both existing and proposed § 100.3(c) interpret this criterion by (1) establishing the relevant time period; (2) distinguishing between the total number of violations and the number of repeat violations of the same provision; and (3) establishing that only violations that have become final orders of the Commission will be used to determine an operator’s history. Operator Size: The second statutory criterion requires consideration of ‘‘the appropriateness of such penalty to the size of the business of the operator charged,’’ but does not provide any details regarding how ‘‘size’’ should be calculated or compared. Both existing and proposed § 100.3(b) interpret this criterion by specifying that: (1) ‘‘Size’’ refers both to the size of the mine cited and to the size of the mine’s controlling entity; (2) ‘‘size’’ is measured in terms of hours worked in the case of metal and nonmetal mines and by production in the case of coal mines; and (3) in the case of independent contractors, ‘‘size’’ is measured in terms of hours worked at all mines. Negligence: The third statutory criterion states that a penalty should reflect ‘‘whether the operator was negligent.’’ Both existing and proposed § 100.3(d) interpret this criterion by defining the term ‘‘negligence’’ as ‘‘conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risk of harm.’’ Both existing and proposed § 100.3(d) further specify that ‘‘[u]nder the Mine Act, an operator is held to a high standard of care.’’ Finally, both existing and proposed § 100.3(d) create and define categories of negligence and assign penalty points based on the degree to which the operator failed to exercise a high standard of care. PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 44507 Effect on Business: The fourth statutory criterion states that a penalty should reflect ‘‘the effect on the operator’s ability to continue in business.’’ Both existing and proposed § 100.3(h) establish a presumption that the operator’s ability to continue in business will not be affected by the assessment of a civil penalty. Both existing and proposed § 100.3(h) also provide for the operator to submit financial information to MSHA and for MSHA to reduce the penalty as appropriate. Gravity: The fifth statutory criterion states that a penalty should reflect ‘‘the gravity of the violation.’’ Both existing and proposed § 100.3(e) define gravity as an evaluation of the seriousness of the violation and specify that gravity is determined by three factors: Likelihood, severity, and the number of persons potentially affected. Section 100.3(e) defines likelihood as the likelihood of the occurrence of the event against which a standard is directed and severity as the severity of the illness or injury if the event has occurred or were to occur. Proposed § 100.3 would retain the three existing gravity factors, but would reduce the number of possible categories within each factor, and define each category. Operator’s Good Faith: Finally, the sixth statutory criterion states that a penalty should reflect ‘‘the demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of a violation.’’ Existing § 100.3(f) defines good faith as abatement of the violation within the time set by the inspector and provides for a 10 percent reduction in the penalty when the mine operator meets the inspector’s deadline. In this proposed rule, MSHA is considering redefining good faith to include both prompt abatement of safety and health hazards and prompt payment of proposed penalties. In addition to providing a substantive interpretation of each statutory criterion, § 100.3 also establishes a formula for converting MSHA’s factual allegations under the six criteria into a dollar amount. Mine operators accumulate penalty points under each criterion according to the tables throughout § 100.3. Through the penalty point tables, contained in each subsection of § 100.3, the Secretary adjusts the relative importance of the six statutory penalty criteria. The sum of penalty points is then converted into a dollar amount using the penalty conversion table in § 100.3(g). The conversion table at § 100.3(g) sets penalties at the level the Secretary considers necessary to protect E:\FR\FM\31JYP2.SGM 31JYP2 44508 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules the safety and health of miners, consistent with the statutory criteria and penalty limits set by Congress. In 2007, the Secretary’s revision to part 100 was explicitly intended to result in an across-the-board increase in penalties to increase the incentives for mine operators to prevent and correct violations. Criteria and Procedures for Proposed Assessment of Civil Penalties, March 22, 2007 (72 FR 13592). Under the provisions in this proposed rule, the total amount of penalties assessed by MSHA would remain generally the same, but the emphasis on certain criteria would be adjusted. When MSHA proposes civil penalties, it provides the operator with an exhibit that details MSHA’s summary of facts supporting the proposed penalty. Both the operator and, in the case of a penalty contest, the Commission have the opportunity to see how MSHA applied part 100’s interpretations and formula to the facts of a particular citation or order. The penalty summary lists the number of penalty points assessed under each statutory penalty criterion and the total resulting penalty amount. 2. The Commission’s Approach to Assessing Civil Penalties Historically, the Secretary (through MSHA), has affirmatively limited the scope, purpose, and applicability of part 100’s penalty formula by explicitly stating that the Commission is not expected to consider the formula when assessing civil penalties. See 30 CFR 100.1 and 100.2 (limiting scope and applicability of part 100 to MSHA’s proposed penalties). In the preamble to the 1982 Final Rule, MSHA stated: When a proposed penalty is contested, neither the formula nor any other aspect of these regulations applies. If the proposed penalty is contested, the Mine Safety and Health Review Commission exercises independent review, and applies the six statutory criteria without consideration of these regulations. Criteria and Procedures for Proposed Assessment of Civil Penalties (May 21, 1982, 47 FR 22286–87) The stated practice of the Commission, therefore, has been to assess penalties de novo according to the six statutory criteria. See, e.g., Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). The Commission has relied, in part, on the Secretary’s regulatory limitations on the reach of part 100 to hold that it possesses de novo authority. See Sellersburg Stone Co., 5 FMSHRC 287, 291 (1983), aff’d Sellersburg Stone Co. v. Federal Mine Safety & Health Rev. Comm’n, 736 F.2d 1147 (7th Cir. 1984). In contrast to part 100, the Commission’s case law does not interpret or define the statutory penalty criteria. To guide the de novo exercise of the authority of Commission administrative law judges (ALJs), the Commission has instead established basic procedures for Commission ALJs to follow when assessing civil penalties. The Commission’s Procedural Rule 30 instructs Commission ALJs to issue a written opinion that makes findings of fact and conclusions of law with regard to each of the statutory criteria. 29 CFR 2700.30. Commission case law also requires that ALJs provide a ‘‘sufficient explanation of the bases underlying the penalties assessed by the Commission’’ for penalties that ‘‘substantially diverge from those originally proposed.’’ Spartan Mining Co., 30 FMSHRC at 723 (quoting Sellersburg, 5 FMSHRC at 293). The Commission’s adequate explanation requirement is purely procedural; it does not purport to establish any deference toward the Secretary’s proposed penalties. Thus, the Commission has unequivocally stated in its rules and decisions that its ALJs are bound by neither the Secretary’s penalty regulations nor the Secretary’s proposed penalty. 30 CFR 2700.30; Mize Granite Quarries, 34 FMSHRC 1760, 1763 (Aug. 7, 2012). The Commission has held that its ALJs need not even give a presumption of validity to the Secretary’s proposed assessments. Mining & Property Specialists, 33 FMSHRC 2961, 2963 (Dec. 6, 2011). Finally, the Commission has held that an ALJ who sustains all of the Secretary’s factual allegations—or even finds greater gravity or negligence than that alleged—is free to assess lower penalties than those proposed by the Secretary, so long as the ALJ provides an adequate explanation for the penalty assessed. Cantera Green, 22 FMSHRC 616, 622 (May 2000). 3. Shortcomings of the Existing Approach to Part 100’s Scope and Applicability MSHA is concerned that the existing approach to part 100’s scope and applicability—under which MSHA applies part 100’s substantive penalty regulations when proposing a penalty, and the Commission assesses penalties de novo without reference to MSHA’s interpretations or policy choices—has several shortcomings that are detrimental to the effectiveness of the Mine Act’s civil penalty scheme. First, the existing approach fails to provide sufficient predictability and consistency. Under the existing approach, the Secretary can sustain his burden to prove the violation and all penalty-related facts, and the Commission may nonetheless assess a civil penalty that differs from that proposed by the Secretary. Indeed, according to the penalty contest data analyzed by MSHA, the Commission takes varied approaches when the Secretary sustains his burden of proof. In cases decided from 2008 through 2013 in which MSHA proposed a regular formula penalty under the existing penalty regulations, and the Commission affirmed the violation with no modifications, the Commission has assessed the penalty proposed by the Secretary in 60 percent of cases; a lower penalty in 33 percent of cases; and a higher penalty in 7 percent of cases. See Table 5 below. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 TABLE 5—FREQUENCY OF PENALTY DIVERGENCE FOR DECISIONS IN WHICH COMMISSION AFFIRMED VIOLATION WITH NO MODIFICATIONS TO CITATION OR ORDER Number of citations and orders decided—no modifications Decision CY* 2008 2009 2010 2011 2012 2013 ................................................................................................................. ................................................................................................................. ................................................................................................................. ................................................................................................................. ................................................................................................................. ................................................................................................................. VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 Commission assessed same penalty (Percent) Commission assessed higher penalty (Percent) 71 62 38 79 43 44 0 9 7 5 21 5 14 116 56 507 145 414 E:\FR\FM\31JYP2.SGM 31JYP2 Commission assessed lower penalty (Percent) 29 29 55 16 36 51 44509 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules TABLE 5—FREQUENCY OF PENALTY DIVERGENCE FOR DECISIONS IN WHICH COMMISSION AFFIRMED VIOLATION WITH NO MODIFICATIONS TO CITATION OR ORDER—Continued Number of citations and orders decided—no modifications Decision CY* Totals ........................................................................................................ Commission assessed same penalty (Percent) Commission assessed higher penalty (Percent) 60 7 1,252 Commission assessed lower penalty (Percent) 33 * Decision results recorded in MSHA systems as of 4/1/2014. The Commission is even more likely to diverge from the penalty indicated by part 100’s formula when a judge modifies the citation or order. In such cases, the Commission assessed the penalty that would have been indicated by applying MSHA’s penalty regulations to the judge’s factual findings in only 22 percent of the cases decided. See Table 6 below. TABLE 6—FREQUENCY OF PENALTY DIVERGENCE FROM MSHA’S REGULAR PENALTY FORMULA FOR DECISIONS IN WHICH COMMISSION AFFIRMED VIOLATION BUT MODIFIED THE CITATION OR ORDER Number of violations affirmed with modification to citation or order Commission assessed same penalty (Percent) Commission assessed higher penalty (Percent) ................................................................................................................. ................................................................................................................. ................................................................................................................. ................................................................................................................. ................................................................................................................. ................................................................................................................. 3 14 19 101 66 91 0 7 47 22 18 24 0 50 16 37 32 57 100 43 37 42 50 19 Totals ........................................................................................................ 294 22 41 37 Decision CY* 2008 2009 2010 2011 2012 2013 Commission assessed lower penalty (Percent) * Decision results recorded in MSHA systems as of 4/1/2014. Such inconsistencies undermine MSHA’s efforts to achieve evenhanded and predictable treatment among violators by promulgating a civil penalty policy that gives fair notice of the consequences of infractions. Second, MSHA is concerned that mine operators hold a perception that a lower penalty can be obtained by bringing a penalty contest before the Commission because the Commission is not required to follow MSHA’s penalty regulations. Indeed, since MSHA began proposing civil penalties under the existing rule, in cases where the Commission has affirmed the Secretary’s citation or order and found that the Secretary met his burden to prove all penalty-related facts, the Commission has assessed total civil penalties that are $579,345, or 15 percent, less than those MSHA originally proposed: TABLE 7—COMPARISON OF TOTAL CIVIL PENALTIES PROPOSED BY MSHA AND TOTAL CIVIL PENALTIES ASSESSED BY COMMISSION IN CASES WHERE COMMISSION AFFIRMED CITATION OR ORDER WITH NO MODIFICATIONS TO CITATION OR ORDER Number of citations and orders decided with no modifications to citation or order MSHA’s proposed penalties under existing rule Commission’s penalty assessments after adjudication Percent change in penalties (Percent) ......................................................................................... ......................................................................................... ......................................................................................... ......................................................................................... ......................................................................................... ......................................................................................... 14 116 56 507 145 414 $17,879 142,477 469,084 1,554,639 900,311 701,796 $16,654 122,803 391,058 1,331,850 769,975 574,501 ¥7 ¥14 ¥17 ¥14 ¥14 ¥18 Totals ................................................................................ 1,252 3,786,186 3,206,841 ¥15 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 Decision CY* 2008 2009 2010 2011 2012 2013 * Decision results recorded in MSHA systems as of 4/1/2014. MSHA is concerned that the perception that a lower penalty can be VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 achieved at the Commission—even when the Secretary sustains his burden PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 of proof—is exacerbating the number of contested cases under the Mine Act by E:\FR\FM\31JYP2.SGM 31JYP2 44510 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules creating an extra and unnecessary incentive for mine operators to contest MSHA’s proposed penalties. An excessive number of penalty contests, in turn, hinder efficient and effective enforcement of the Mine Act. Third, MSHA is concerned that the integrity of penalty decisions is compromised by the lack of substantive rules to guide the Commission’s penalty analysis. Commission ALJs identify and discuss the six statutory penalty criteria before arriving at a penalty, but the Commission’s precedent, unlike part 100, provides ALJs with no consistent method to interpret each criterion or to translate that discussion into a penalty amount. Because Congress did not give the Commission the authority to make law or policy, but rather gave the Commission limited authority to issue procedural rules, see 30 U.S.C. 823(d)(2), the Commission’s lack of substantive guidance to its ALJs on the meaning of the six statutory penalty criteria cannot be remedied through Commission rulemaking or adjudication. Finally, MSHA is concerned that the existing approach undermines the Secretary’s ability to establish a penalty policy that achieves the deterrent purposes of civil penalties under the Mine Act. Under the Mine Act’s splitenforcement model, the Secretary has exclusive policymaking authority, and the Commission is ‘‘the equivalent of a court.’’ See, e.g., Jeroski v. Sec’y of Labor, 697 F.3d 651, 653 (7th Cir. 2012). If the Secretary decides that an acrossthe-board increase or decrease in civil penalties is necessary to achieve the purposes of the Mine Act, the Commission’s overall assessments should also reflect that policy choice, so long as the Secretary sustains his burden of proof regarding the facts of each violation and the six penalty criteria. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 B. Proposed Alternatives to the Existing Approach to §§ 100.1 and 100.2 MSHA is considering two alternative proposals to bring greater consistency and predictability to the assessment of civil penalties than achieved by the existing approach to §§ 100.1 and 100.2. The third alternative would be to leave these sections unchanged. 1. Modify the Scope and Applicability of Part 100 To Make § 100.3 a Legislative Rule Governing Both the Proposal and the Assessment of Civil Penalties MSHA’s first proposed alternative is to modify the scope and applicability of part 100 so that § 100.3 is a legislative rule that governs both MSHA’s proposal VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 and the Commission’s assessment of civil penalties. This alternative would require the Commission to apply the penalty formula when assessing civil penalties according to the six statutory criteria. Under the first alternative, §§ 100.1 and 100.2 would be revised to read as follows: § 100.1 Scope and Purpose This part provides the criteria and procedures for the proposal and assessment of civil penalties under §§ 105 and 110 of the Federal Mine Safety and Health Act of 1977 (Mine Act). The purpose of this part is to provide a fair and equitable procedure for the application of the statutory criteria in determining penalties by both MSHA and the Commission, to maximize the incentives for mine operators to prevent and correct hazardous conditions, to encourage the consistent and predictable assessment of civil penalties, and to assure the prompt and efficient processing and collection of penalties. § 100.2 Applicability The criteria and procedures in this part are applicable to the proposal and assessment of civil penalties for violations of the Mine Act and the standards and regulations promulgated pursuant to the Mine Act, as amended. (a) MSHA shall review each citation and order and shall make proposed assessments of civil penalties. (b) When MSHA elects to make a regular formula assessment, the Federal Mine Safety and Health Review Commission shall determine whether MSHA has met its burden to establish the facts required to sustain each proposed assessment and shall assess a penalty in accordance with the civil penalty formula established in §§ 100.3 and 100.4 of this part. Under this alternative, as under the existing rule, MSHA would propose a penalty according to the part 100 formula. If the mine operator contests the penalty, an ALJ would make findings of fact under each of the six penalty criteria. This alternative would take a different approach than the existing rule to the application of the penalty formula to the facts found by the ALJ. Under this alternative, if the Secretary meets his burden to prove the penalty-related facts alleged, part 100 would require the ALJ to assess MSHA’s proposed penalty. If the Secretary does not meet his burden of proof, the judge would apply part 100’s penalty formula to the adjudicated facts to arrive at a new assessment. Under this proposed alternative, the Commission, when reviewing contested penalty assessments, would review the ALJ’s factual findings for substantial evidence as it has under the existing rule. The proposed alternative would additionally require the Commission to PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 review whether the ALJ correctly applied part 100 to the penalty-related facts. 2. Modify the Scope and Applicability of Part 100 While Allowing the Commission To Depart From the Formula Penalty MSHA’s second proposed alternative is similar to the first, but would give the Commission flexibility to depart from the part 100 penalty formula in much the same way that district court judges were authorized, in limited circumstances, to depart from the Sentencing Guidelines before the Supreme Court’s ruling in United States v. Booker, 543 U.S. 220 (2005). Under that framework, the district court first calculated the applicable Sentencing Guidelines range, and then considered whether to grant an upward or downward departure. See, e.g., Koon v. United States, 518 U.S. 81, 88–89 (1996).1 The Sentencing Reform Act of 1984 contemplated that district court judges would grant a departure for ‘‘an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.’’ 18 U.S.C. 3553(b)(1). To determine whether the Sentencing Commission had adequately considered a circumstance, Congress instructed courts to consider the Sentencing Guidelines, policy statements, and official commentary of the Sentencing Commission. Id. The Commission’s Manual elaborated on the concept of departures by explaining that departures were warranted in unusual or atypical cases and described such cases as ‘‘one[s] to which a particular guideline linguistically applies but where conduct significantly differs from the norm.’’ Koon, 518 U.S. at 93 (quoting 1995 U.S.S.G. ch. 1, pt. A, intro. comment. 4(b)). Under MSHA’s second alternative, part 100 would employ a similar legal standard and allow Commission ALJs to make an upward or downward departure from MSHA’s formula when justified. Sections 100.1 and 100.2 would be revised to read as follows: § 100.1 Scope and Purpose This part provides the criteria and procedures for the proposal and assessment of civil penalties under §§ 105 and 110 of the 1 The pre-Booker Sentencing Guidelines are more analogous to this rulemaking than the post-Booker Guidelines because the criminal constitutional protections motivating the Supreme Court’s decision in Booker are inapplicable to the assessment of civil penalties under the Mine Act. E:\FR\FM\31JYP2.SGM 31JYP2 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules Federal Mine Safety and Health Act of 1977 (Mine Act). The purpose of this part is to provide a fair and equitable procedure for the application of the statutory criteria in determining penalties by both MSHA and the Commission, to maximize the incentives for mine operators to prevent and correct hazardous conditions, to encourage the consistent and predictable assessment of civil penalties, and to assure the prompt and efficient processing and collection of penalties. § 100.2 Applicability The criteria and procedures in this part are applicable to the proposal and assessment of civil penalties for violations of the Mine Act and the standards and regulations promulgated pursuant to the Mine Act, as amended. MSHA would also incorporate a new § 100.9 to identify the applicable legal standard for Commission ALJs to apply to the Secretary’s proposed regular assessments. The new § 100.9 would read as follows: wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 § 100.9 Commission Review of the Secretary’s Proposed Regular Assessments (a) When MSHA elects to make a regular formula assessment, the Federal Mine Safety and Health Review Commission shall determine whether MSHA has met its burden to establish the facts required to sustain each proposed assessment and shall assess a penalty in accordance with the civil penalty formula established in §§ 100.3 and 100.4 of this part. (b) Notwithstanding § 100.9(a), if the administrative law judge (ALJ) finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Secretary when formulating the penalty regulations, the ALJ may assess a penalty other than that indicated by the formula so long as: (1) The ALJ considers the penalty regulations in part 100, the relevant regulatory history, and MSHA’s policy statements when determining whether the Secretary adequately considered the circumstance. (2) The ALJ provides a statement of reasons for assessing a civil penalty that is higher or lower than the penalty indicated by applying §§ 100.3 and 100.4 to the penalty-related facts as found by the ALJ. (3) The ALJ considers the statutory penalty criteria and the purposes of this part identified in § 100.1. (4) The ALJ assesses a civil penalty that is consistent with statutory minimum and maximum penalties. Under the second proposed alternative, the Secretary anticipates that the Commission would review the ALJ’s findings of penalty-related facts for substantial evidence; the ALJ’s application of the civil penalty formula in §§ 100.3 and 100.4 to the penaltyrelated facts de novo; and the ALJ’s assessment of a penalty under § 100.9(b) for abuse of discretion. MSHA’s second VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 proposed alternative would promote greater consistency and predictability than the existing rule because Commission ALJs would assess the formula penalty indicated by the adjudicated facts in many, if not most, cases. When departing from the formula penalty, Commission ALJs would not disregard the Secretary’s penalty regulations, but rather would engage in a reasoned examination of them. Through the process of explaining justified departures from the penalty regulations in a limited number of cases, the Commission and its ALJs could contribute to a dialogue with the Secretary, mine operators, and other interested parties about ways in which the Secretary could continue to refine and improve the regular assessment rules to better serve the purposes of the Mine Act. 3. No Change to Regulatory Language MSHA’s third proposed alternative is to make no change to the existing scope and applicability of part 100. Under this alternative, the Secretary could pursue his penalty objectives through a case-bycase approach in penalty contests before the Commission. In litigation, the Secretary could ask the Commission to establish a presumption of validity in favor of the penalty indicated by part 100 by requiring its ALJs to give an explanation for why the part 100 penalty is inadequate, rather than an explanation for the bases of the Commission’s de novo assessment according to the six statutory criteria. The Secretary could also request that the Commission provide more guidance to Commission ALJs about what an adequate explanation of a penalty assessment involves. Finally, the Secretary could ask the Commission to defer to the Secretary’s interpretations of the penalty factors in part 100, even if the Commission does not weigh and balance those factors as the Secretary does in § 100.3(g)’s penalty conversion table. C. Request for Comments MSHA seeks comments addressing which of these three proposed alternatives would best achieve the purposes of the Mine Act’s civil penalty scheme. In particular, MSHA seeks comments addressing whether part 100’s civil penalty formula should govern the Commission’s penalty assessments in addition to MSHA’s penalty proposals, or whether MSHA should instead continue to address penalty-related issues on a case-by-case basis through litigation rather than rulemaking. MSHA also seeks comments addressing whether the PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 44511 Commission should be able to depart from the penalty formula and what requirements the Commission should satisfy when departing from the formula. V. Preliminary Regulatory Economic Analysis MSHA has not prepared a separate regulatory economic analysis for this rulemaking. Rather, the analysis is presented below. MSHA requests comments on all estimates of costs and benefits presented in this preamble, and on the data and assumptions the Agency used to develop estimates. A. Executive Orders (E.O.) 12866 and 13563 Executive Orders 12866 and 13563 direct 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 safety and health effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Under E.O. 12866, a significant regulatory action is one meeting any of a number of specified conditions, including the following: Having an annual effect on the economy of $100 million or more, creating a serious inconsistency or interfering with an action of another agency, materially altering the budgetary impact of entitlements or the rights of entitlement recipients, or raising novel legal or policy issues. MSHA has determined that the proposed rule is a significant regulatory action because it raises novel legal and policy issues. The analysis below indicates that the total transfer of monetary penalties from the mining industry to the Federal government would decrease by approximately $2.7 million from $82.5 million under the existing rule to $79.8 million under the proposed rule. For analysis purposes under E.O. 12866, there are no costs or quantified benefits. B. Population at Risk The proposed 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 (M/NM) mines. The Agency maintains data on the number of mines and on mining employment by mine type and size. MSHA also collects data on employment at independent contractor E:\FR\FM\31JYP2.SGM 31JYP2 44512 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules firms performing certain types of work at mines and on mining operations owned or operated by state or local governments. As shown in Table 8, MSHA estimates that there were 13,757 mines with employment in 2013, including 149 mines owned or operated by state or local governments. These mines employed 340,000 miners, including contract workers and excluding office workers. TABLE 8—NUMBER OF MINES, AND EMPLOYMENT, EXCLUDING OFFICE EMPLOYEES, BY EMPLOYMENT SIZE OF MINE, IN 2013 Size of mine (# employees) # coal mines # M/NM mines Total # mines Non-office employment at coal mines Non-office employment at M/NM mines 1–19 ......................................................... 20–500 ..................................................... 501+ ......................................................... Contractors ............................................... 991 688 23 ........................ 10,654 1,368 33 ........................ 11,645 2,056 56 ........................ 6,305 56,727 17,041 ........................ 48,697 72,697 23,477 ........................ 55,002 129,424 40,518 114,911 Total .................................................. 1,702 12,055 13,757 80,073 144,871 339,855 MSHA estimates the value of coal produced in 2013 using coal production, and the most recent price of coal from the U.S. Department of Energy (DOE), Energy Information Administration (EIA), adjusted to 2013 dollars using the GDP price deflator from the Bureau of Economic Analysis. MSHA estimates the 2013 price per ton of underground coal to be $67.56, and the 2013 price per ton of surface coal to be $26.83. The estimated value of coal produced in U.S. coal mines in 2013 was $40.3 billion, of which $23.1 billion was from underground coal and $17.2 billion from surface coal. The U.S. Department of the Interior (DOI) estimated the value of the U.S. Non-office employment at all mines mining industry’s M/NM output in 2013 to be approximately $74.2 billion. The value of production estimates are from DOI, U.S. Geological Survey (USGS), Mineral Commodity Summaries 2014, February 2014, page 8. As shown in Table 9, the combined value of production from all U.S. mines in 2013 was $114.5 billion. TABLE 9—COAL AND M/NM MINE REVENUE, BY EMPLOYMENT SIZE OF MINE, IN 2013 Coal revenue (millions of dollars) M/NM revenue (millions of dollars) Total revenue (millions of dollars) 1–19 ............................................................................................................................................. 20–500 ......................................................................................................................................... 501+ ............................................................................................................................................. $603 24,921 14,771 $16,803 39,431 17,967 $17,405 64,352 32,738 Total ...................................................................................................................................... 40,295 74,200 114,495 Size of mine (# employees) wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 C. Benefits The proposed changes to part 100 would improve the efficiency of the Agency’s enforcement efforts and minimize disputes. When issuing citations or orders, inspectors are required to evaluate safety and health conditions and make decisions about five of the six statutory criteria. The proposed rule would simplify the gravity and negligence criteria and place an increased emphasis on the more serious hazards. Simplifying the criteria would increase objectivity and clarity in the citation and order process. The proposed changes should result in fewer areas of disagreement and earlier resolution of enforcement issues, which should result in fewer contests of violations or proposed assessments. MSHA conducted a detailed analysis of the 121,089 violations for which MSHA proposed penalties under the regular formula during the 12-month baseline (2013). In reviewing the existing distribution of the factors used VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 to calculate the civil penalties, MSHA determined that there were noticeable differences in the way inspectors evaluated subjective factors such as the likelihood of the cited condition or practice causing an accident, the expected severity of any injury the condition or practice might cause, and the degree of negligence attributed to the mine operator in allowing the condition or practice to occur. For example, negligence attributed to the violator currently accounts for 30 percent of the penalty points assigned to all violations. The data revealed that M/ NM mine inspectors assessed ‘‘High Negligence’’ in 10 percent of the violations while inspectors in coal mines assessed ‘‘High Negligence’’ in five percent of the violations. An even larger difference exists with the inspectors’ evaluation of injury severity. M/NM mine inspectors evaluate the potential injury to be ‘‘Fatal’’ in 24 percent of the violations cited compared to 11 percent for coal mine inspectors. PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 MSHA’s existing Form 7000–3 ‘‘Mine Citation/Order Form’’ is both outdated and complex. With 1,000 possible permutations for Gravity and Negligence, the existing form lends itself to subjectivity and ambiguity when evaluating these factors. The proposed citation/order form would reduce the number of permutations to 54, simplifying the criteria to increase objectivity and the form’s clarity consistent with changes in the proposed rule. The proposed revisions to the citation/order form would result in fewer areas of disagreement and earlier resolution of enforcement issues. The proposal is structured to encourage operators to be more proactive in addressing safety and health conditions at their mines. Under the proposal, total monetary civil penalties would remain generally the same as MSHA’s proposed penalties under the existing rule. The proposal would place an increased emphasis on negligence and gravity to more appropriately address factors that E:\FR\FM\31JYP2.SGM 31JYP2 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules directly impact miner safety and health. The proposal would place less emphasis on mine size, with slightly less emphasis on controller and contractor sizes. Finally, MSHA is proposing to increase the minimum penalties for unwarrantable failure to provide greater deterrent for operators who allow these types of violations to occur. Although MSHA has identified potential benefits of the proposed rule, the Agency has no basis to quantify or monetize these potential benefits. Further, MSHA’s analysis of the projected benefits considered only the effect of the proposal on MSHA’s proposed penalties and did not consider the impact of the proposal on final orders of the Commission. MSHA has no basis from which to project how the proposed changes to §§ 100.1 and 100.2 might affect final orders of the Commission. D. Projected Impacts For most MSHA rules, the estimated impact associated with a proposed rule reflects the cost to the mining industry of achieving compliance with the rule. For this proposed rule, the projected impacts consist of slightly lower total payments by mine operators for penalties incurred. In response to the proposed changes to the regular penalty formula, a mine operator could invest in complying with safety and health standards and regulations. When MSHA promulgates a new standard, it generally assumes full industry compliance with the existing standard when estimating compliance costs. Any compliance costs incurred in response to adjustments in the penalty tables, therefore, are not costs attributable to this proposed rule. MSHA is aware that some state and local governments own or operate mines. MSHA does not propose penalties for violations at these mines; therefore, state and local governments are not directly impacted by this proposal. Any increase in proposed MSHA assessments that may occur would be a transfer of resources between government and private industry. It would not be a cost to society as a whole, although it would be a private cost to mine operators and independent contractors. MSHA evaluated the impact of the proposed changes using actual violation data. MSHA conducted a detailed analysis of the 121,089 citations and orders for which MSHA proposed assessments under the regular formula between January 1, 2013 and December 31, 2013 (baseline), the most current year of data available at the time of the analysis. A critical aspect of the analysis was the projection of inspector behavior under the proposed revisions. Due to the reduction in the number of categories for some criteria, MSHA combined some of the existing categories. For example, the existing categories of ‘‘No Likelihood’’ and ‘‘Unlikely’’ were combined in the 44513 proposed category of ‘‘Unlikely’’ and the existing categories of ‘‘Reasonably Likely’’ and ‘‘Highly Likely’’ were combined in the proposed category of ‘‘Reasonably Likely.’’ Tables 10 and 11 show the actual proposed civil penalties under the existing rule and projected proposed civil penalties under the proposed rule. The projected average proposed penalty decreases from $876 to $815 for penalties assessed at coal mines and increases from $459 to $480 for penalties assessed at M/NM mines. Total penalties for the coal sector would decline approximately $3.9 million and increase approximately $1.2 million for the M/NM sectors. The estimated penalty decrease of $2.7 million for all mines relative to aggregate penalty levels is 3 percent. Table 12 shows the number and dollar amounts of all regular formula proposed civil penalties for mine operators and independent contractors for the 12month baseline period. Of the $82.5 million actual proposed penalties, 69 percent were for the coal mine sector and 31 percent were for the M/NM mine sector. Of the $79.8 million projected proposed penalties, 66 percent were for the coal mine sector and 34 percent were for the M/NM mine sector. Penalties assessed on independent contractors account for five percent ($4.5 million) of the $82.5 million actual proposed penalties and six percent ($4.6 million) of the $79.8 million projected proposed penalties. TABLE 10—ACTUAL PROPOSED CIVIL PENALTIES UNDER THE EXISTING REGULATION, COAL AND METAL/NONMETAL, 2013 Coal Penalty range Violations assessed Minimum ................................................... <$500 ....................................................... $500 to $1,000 ......................................... $1,001 to $5,000 ...................................... $5,001 to $10,000 .................................... $10,001 to $69,999 .................................. Maximum .................................................. Total .................................................. Average ............................................. 18,478 25,495 9,070 9,887 1,194 590 18 64,732 ........................ Metal/Nonmetal Percent of violations Penalty $2,069,536 6,243,120 6,467,964 20,770,995 8,344,876 11,517,886 1,260,000 56,674,377 876 Violations assessed 28 42 12 15 2 1 <1 ........................ ........................ 32,052 15,452 4,002 4,228 430 192 1 56,357 ........................ Penalty $3,589,824 3,715,074 2,855,905 8,782,850 3,044,725 3,784,885 70,000 25,843,263 459 Percent of violations 56 30 6 7 1 <1 <1 ........................ ........................ wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 TABLE 11—PROJECTED PROPOSED CIVIL PENALTIES UNDER THE PROPOSED REGULATION, COAL AND METAL/NONMETAL, 2013 Coal Penalty range Violations assessed Minimum ................................................... <$500 ....................................................... $500 to $1,000 ......................................... $1,001 to $5,000 ...................................... $5,001 to $10,000 .................................... VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 22,898 23,857 6,898 9,347 1,455 PO 00000 Frm 00021 Metal/Nonmetal Percent of violations Penalty $2,564,576 5,754,830 4,793,200 22,187,200 10,445,000 Fmt 4701 Sfmt 4702 Violations assessed 35 37 11 14 2 E:\FR\FM\31JYP2.SGM 34,571 14,751 2,944 3,340 541 31JYP2 Penalty $3,871,952 3,877,979 1,951,900 8,009,300 3,951,000 Percent of violations 61 26 5 6 1 44514 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules TABLE 11—PROJECTED PROPOSED CIVIL PENALTIES UNDER THE PROPOSED REGULATION, COAL AND METAL/NONMETAL, 2013—Continued Coal Penalty range Violations assessed Metal/Nonmetal Percent of violations Penalty Violations assessed Percent of violations Penalty $10,001 to $69,999 .................................. Maximum .................................................. 274 3 6,820,000 210,000 <1 <1 209 1 5,300,000 70,000 <1 <1 Total .................................................. 64,732 52,774,806 ........................ 56,357 27,032,131 ........................ Average ............................................. ........................ 815 ........................ ........................ 480 ........................ TABLE 12—ACTUAL AND PROJECTED PROPOSED CIVIL PENALTIES UNDER THE EXISTING AND PROPOSED REGULATIONS, ALL MINES Total actual civil penalties proposed (2013) Total projected civil penalties proposed based on 2013 violations Penalty range Violations assessed Penalty proposed Percent of violations Violations assessed Projected penalty Percent of violations Minimum ................................................... <$500 ....................................................... $500 to $1,000 ......................................... $1,001 to $5,000 ...................................... $5,001 to $10,000 .................................... $10,001 to $69,999 .................................. Maximum .................................................. 50,530 40,947 13,072 14,115 1,624 782 19 $5,659,360 9,958,194 9,323,869 29,553,845 11,389,601 15,302,771 1,330,000 42 34 11 12 1 1 <1 57,469 38,608 9,842 12,687 1,996 483 4 $6,436,528 9,632,809 6,745,100 30,196,500 14,396,000 12,120,000 280,000 47 32 8 10 2 <1 <1 Total .................................................. 121,089 82,517,640 ........................ 121,089 79,806,937 ........................ Average ............................................. ........................ 681 ........................ ........................ 659 ........................ wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 VI. Feasibility MSHA has concluded that the proposed revisions to part 100 civil penalties are technologically and economically feasible. Because the proposed rule is not technology-forcing, MSHA concludes that the rule is technologically feasible. MSHA has traditionally used a revenue screening test—whether the yearly impacts of a regulation are less than one percent of revenues—to establish presumptively that the regulation is economically feasible for the mining community. Because the proposed rule is projected to decrease the proposed penalty amounts by approximately $2.7 million on an industry with estimated annual revenues of $114.5 billion, MSHA concludes that the proposed rule would be economically feasible for the mining industry. VII. Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act (SBREFA) Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), MSHA has analyzed the compliance cost impact of the proposed rule on small entities. Based on that analysis, MSHA certifies that the proposed rule would not have VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 a significant economic impact on a substantial number of small entities in terms of compliance costs. Therefore, the Agency is not required to develop an initial regulatory flexibility analysis. The factual basis for this certification is presented below. A. Definition of a Small Mine Under the RFA, in analyzing the impact of a rule on small entities, MSHA must use the Small Business Administration’s (SBA’s) 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 established an alternative definition, and is required to use SBA’s definition. The SBA defines a small entity in the mining industry as an establishment with 500 or fewer employees. MSHA has also examined the impact of the proposed 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, PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 and in supply inventory. Therefore, their costs of complying with MSHA’s rules and the impact of the Agency’s rules on them will also tend to be different. This analysis complies with the requirements of the RFA for an analysis of the impact on small entities while continuing MSHA’s traditional definition of ‘‘small mines.’’ B. Factual Basis for Certification 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 further analysis is required. Under the existing rule, proposed assessments on mines with 1 to 500 employees amount to 85 percent of total proposed assessments. Under the proposal, MSHA projects that total penalties would remain basically the E:\FR\FM\31JYP2.SGM 31JYP2 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules same as under the existing rule. As shown in Table 13 of this preamble, MSHA projects that proposed penalties at mines with 1 to 500 employees would decrease under the proposed rule by $1.6 million. Proposed penalties at 44515 mines with 1 to 19 employees are projected to decrease by $0.2 million. TABLE 13—PROJECTED CHANGE IN PROPOSED PENALTIES UNDER THE PROPOSED RULE, AND THE PERCENT OF TOTAL PROJECTED PENALTY AMOUNT Projected impact ($ million) Size of mine (# employees) Percent of total projected penalty amount 2013 Revenue ($ million) Projected impact as a percentage of revenue M/NM Mines 1 to 19 .............................................................................................................. 1 to 500 ............................................................................................................ ¥$1.8 0.7 26 81 $16,803 $56,233 N/A <0.1 1.6 ¥2.3 11 88 603 25,524 <1 N/A ¥0.2 ¥1.6 16 86 17,405 81,757 N/A N/A Coal Mines 1 to 19 .............................................................................................................. 1 to 500 ............................................................................................................ All Mines 1 to 19 .............................................................................................................. 1 to 500 ............................................................................................................ wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 N/A—Not Applicable. MSHA projects that proposed penalties at M/NM mines with 1 to 500 employees would increase by $0.7 million under this proposed rule, which rounds to zero percent of 2013 annual revenue. Proposed penalties at M/NM mines with 1 to 19 employees are projected to decrease by $1.8 million. This is due in part to proposed § 100.3(c)(1), which would assign zero violation history points when a mine has 10 or fewer inspection days over the preceding 15-month period. MSHA projects that proposed penalties at coal mines with 1 to 500 employees would decrease by $2.3 million under this proposed rule. Projected proposed penalties at coal mines with 1 to 19 employees represent 11 percent of total projected penalties for coal mines. The projected impact on the 991 small coal mines with 1 to 19 employees would increase proposed penalties by $1.6 million or about $1,600 per mine. This represents <1 percent (about 0.27 percent) of 2013 annual revenue for these small coal mines. MSHA historically identifies mine size based on employment at the mine. Some mines with fewer than 19 employees are controlled by much larger entities. MSHA estimates that 252 or 24 percent of the small mines where MSHA proposed civil penalties for citations/orders in 2013 were controlled by entities with more than 500 employees. The 252 small coal mines would see an increase of $808,000 in penalties under the proposed rule, or 41 VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 percent of the $1.6 million penalties assessed on all small coal mines. MSHA issued 8,752 citations/orders to independent contractors in 2013. MSHA estimates that independent contractors would see an increase in penalties from $4.5 million to $4.6 million as a result of the proposed rule. Accordingly, MSHA certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities. VIII. Paperwork Reduction Act of 1995 This proposed rule contains no additional information collections subject to review by OMB under the Paperwork Reduction Act. MSHA Form 7000–3 is solely used by MSHA’s personnel as part of the Agency’s enforcement activities. Any burden associated with the form is not subject to the Paperwork Reduction Act. IX. Other Regulatory Considerations A. The Unfunded Mandates Reform Act of 1995 MSHA has reviewed the proposed rule under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that this proposed rule would not include any federal mandate that may result in increased expenditures by state, local, or tribal governments; nor would it increase private sector expenditures by more than $100 million, adjusted for inflation, in any one year or significantly or uniquely affect small governmental jurisdictions. Accordingly, the Unfunded Mandates PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 Reform Act of 1995 requires no further Agency action or analysis. MSHA is aware that some state and local governments own or operate mines. MSHA does not propose penalties for violations at these mines; therefore, state and local governments are not directly impacted by this proposal. B. Executive Order 13132: Federalism This proposed rule would not have ‘‘federalism implications’’ because it would 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 proposed rule would have no effect on family stability or safety, marital commitment, parental rights and authority, or income or poverty of families and children. This proposed rule impacts only the mining industry. Accordingly, MSHA certifies that this proposed rule would not impact family well-being. E:\FR\FM\31JYP2.SGM 31JYP2 44516 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules D. Executive Order 12630: Government Actions and Interference With Constitutionally Protected Property Rights The proposed rule would 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 proposed 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 proposed rule would meet the applicable standards provided in § 3 of E.O. 12988, Civil Justice Reform. F. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks This proposed rule would have no adverse impact on children. Accordingly, under E.O. 13045, no further Agency action or analysis is required. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This proposed rule would not have ‘‘tribal implications’’ because it would 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. 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 proposed rule for its energy effects because the proposed rule applies to the coal mining sector. Because this proposed rule would result in a reduction in expenditures by the coal mining industry, MSHA has concluded that it is not a significant energy action because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Accordingly, under this analysis, no VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 further Agency action or analysis is required. I. Executive Order 13272: Proper Consideration of Small Entities in Agency Rulemaking MSHA has reviewed the proposed 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 proposed rule would not have a significant economic impact on a substantial number of small entities. List of Subjects in 30 CFR Part 100 Mine safety and health, Penalties. Dated: July 25, 2014. 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, MSHA is proposing to amend chapter I of title 30, part 100 of the Code of Federal Regulations as follows: PART 100—CRITERIA AND PROCEDURES FOR ASSESSMENT OF CIVIL PENALTIES 1. The authority citation for part 100 continues to read as follows: ■ where a full year of data is not available, the coal produced or hours worked is prorated to an annual basis. This criterion accounts for a maximum of 8 penalty points. TABLE I—SIZE OF COAL MINE Annual tonnage of mine Penalty points <50,000 ......................................... >50,000 to 500,000 ...................... >500,000 to 1,000,000 ................. >1,000,000 .................................... 1 2 3 4 TABLE II—SIZE OF CONTROLLING ENTITY—COAL MINE Annual tonnage Penalty points <200,000 ....................................... >200,000 to 700,000 .................... >700,000 to 3,000,000 ................. >3,000,000 .................................... 1 2 3 4 TABLE III—SIZE OF METAL/NONMETAL MINE Annual hours worked at mine Penalty points <5,000 ........................................... >5,000 to 200,000 ........................ >200,000 to 1,500,000 ................. >1,500,000 to 3,000,000 .............. >3,000,000 .................................... 0 1 2 3 4 Authority: 30 U.S.C. 815, 820, 957. 2. Revise the heading for part 100 to read as set forth above. ■ 3. In § 100.3, revise paragraphs (b), (c), (d), (e), (g), and (h) to read as follows: ■ § 100.3 Determination of penalty amount; regular assessment. * * * * * (b) The appropriateness of the penalty to the size of the business of the operator charged. The appropriateness of the penalty to the size of the mine operator’s business is calculated by using both the size of the mine cited and the size of the mine’s controlling entity. The size of coal mines and their controlling entities is measured by coal production. The size of metal and nonmetal mines and their controlling entities is measured by hours worked. The size of independent contractors is measured by the total hours worked at all mines. Penalty points for size are assigned based on Tables I through V of this section. As used in these tables, the term ‘‘annual tonnage’’ means tons of coal produced by the mine in the previous calendar year and ‘‘annual hours worked’’ means total hours worked by all employees at the mine in the previous calendar year. In cases PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 TABLE IV—SIZE OF CONTROLLING ENTITY—METAL/NONMETAL MINE Annual hours worked Penalty points <50,000 ......................................... >50,000 to 300,000 ...................... >300,000 to 2,000,000 ................. >2,000,000 to 5,000,000 .............. >5,000,000 .................................... 0 1 2 3 4 TABLE V—SIZE OF INDEPENDENT CONTRACTOR Annual hours worked at all mines <5,000 ........................................... >5,000 to 10,000 .......................... >10,000 to 30,000 ........................ >30,000 to 70,000 ........................ >70,000 to 200,000 ...................... >200,000 to 500,000 .................... >500,000 to 700,000 .................... >700,000 to 1,000,000 ................. >1,000,000 .................................... Penalty points 0 1 2 3 4 5 6 7 8 (c) History of previous violations. An operator’s history of previous violations is based on both the total number of violations and the number of repeat E:\FR\FM\31JYP2.SGM 31JYP2 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules violations of the same citable provision of a standard in the 15-month period preceding the occurrence date of the violation being assessed. Only assessed violations that have become final orders of the Federal Mine Safety and Health Review Commission will be included in determining an operator’s violation history. (1) Total number of violations. For mine operators, penalty points are assigned for violations per inspection day based on Table VI of this section. Penalty points are not assigned for mines with fewer than 10 violations or 10 or fewer inspection days in the specified history period. For independent contractors, penalty points are assigned for the total number of violations at all mines based on Table VII of this section. Penalty points are not assigned for independent contractors with fewer than six violations in the specified history period. This aspect of the history criterion accounts for a maximum of 16 penalty points. TABLE VI—HISTORY OF PREVIOUS VIOLATIONS—MINE OPERATORS Overall history: Violations per inspection day <0.3 >0.3 >0.5 >0.7 >0.9 >1.1 >1.3 >1.5 >1.7 >1.9 >2.1 0 2 5 8 10 11 12 13 14 15 16 TABLE VII—HISTORY OF PREVIOUS VIOLATIONS—INDEPENDENT CONTRACTORS wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 Overall history: Total violations at all mines Penalty points 0 to 5 ............................................ 6 to 7 ............................................ 8 to 9 ............................................ 10 to 11 ........................................ 12 to 13 ........................................ 14 to 15 ........................................ 16 to 17 ........................................ 18 to 19 ........................................ 20 to 21 ........................................ 22 to 23 ........................................ 24 .................................................. 25 .................................................. 26 .................................................. 27 .................................................. 28 .................................................. 29 .................................................. >29 ................................................ VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 TABLE VIII—HISTORY OF PREVIOUS VIOLATIONS—REPEAT VIOLATIONS FOR COAL AND METAL/NONMETAL OPERATORS WITH A MINIMUM OF SIX REPEAT VIOLATIONS Number of repeat violations per inspection day Penalty points ............................................... to 0.5 .................................... to 0.7 .................................... to 0.9 .................................... to 1.1 .................................... to 1.3 .................................... to 1.5 .................................... to 1.7 .................................... to 1.9 .................................... to 2.1 .................................... ............................................... (2) Repeat violations of the same standard. This section applies only after an operator has a minimum of 10 violations and more than 10 inspection days or an independent contractor has a minimum of six violations in the specified history period. Repeat violation history is based on the number of violations of the same citable provision of a standard. For coal and metal and nonmetal mine operators with a minimum of six repeat violations, penalty points are assigned for the number of repeat violations per inspection day (RPID) based on Table VIII of this section. For independent contractors, penalty points are assigned for the number of repeat violations at all mines based on Table IX of this section. This aspect of the history criterion accounts for a maximum of 10 penalty points. 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Penalty points <0.01 ............................................. >0.01 to 0.02 ................................ >0.02 to 0.03 ................................ >0.03 to 0.05 ................................ >0.05 to 0.08 ................................ >0.08 to 0.12 ................................ >0.12 to 0.16 ................................ >0.16 to 0.20 ................................ >0.2 to 0.3 .................................... >0.3 to 0.5 .................................... >0.5 ............................................... 0 1 2 3 4 5 6 7 8 9 10 TABLE IX—HISTORY OF PREVIOUS VIOLATIONS—REPEAT VIOLATIONS FOR INDEPENDENT CONTRACTORS Number of repeat violations at all mines Penalty points <6 .................................................. 6 .................................................... 7 .................................................... 8 .................................................... 9 .................................................... 10 .................................................. 11 .................................................. 12 .................................................. 13 .................................................. 14 .................................................. >14 ................................................ 0 1 2 3 4 5 6 7 8 9 10 44517 safety or health of miners and to take steps necessary to correct or prevent hazardous conditions or practices. The failure of a mine operator to exercise a high standard of care constitutes negligence. The negligence criterion assigns penalty points for the degree to which the operator failed to exercise a high standard of care based on conduct evaluated according to Table X of this section. This criterion accounts for a maximum of 30 penalty points. TABLE X—NEGLIGENCE Standard of care Penalty points Not Negligent: (The operator exercised diligence and could not have known of the violative condition or practice.) ............... Negligent: (The operator knew or should have known of the violative condition or practice.) ......... Reckless Disregard: (The operator displayed conduct which exhibits the absence of the slightest degree of care.) .......... 0 15 30 (e) Gravity. Gravity is an evaluation of the seriousness of the violation. Gravity is determined by the likelihood of the occurrence of the event against which a standard is directed; the severity of the illness or injury if the event has occurred or were to occur; and whether or not persons are potentially affected if the event has occurred or were to occur. The gravity criterion assigns penalty points based on Tables XI through XIII of this section. This criterion accounts for a maximum of 36 penalty points. TABLE XI—GRAVITY: LIKELIHOOD Likelihood of occurrence Penalty points Unlikely: (Condition or practice cited has little or no likelihood of causing an event that could result in an injury or illness.) ..... Reasonably Likely: (Condition or practice cited is likely to cause an event that could result in an injury or illness.) ........................ Occurred: (Condition or practice cited has caused an event that has resulted or could have resulted in an injury or illness.) .... 0 14 25 TABLE XII—GRAVITY: SEVERITY (d) Negligence. Negligence is conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risks of harm. Under the Mine Act, a mine operator is required to be on the alert for conditions and practices in the mine that affect the PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 Severity of injury or illness if the event has occurred or were to occur No lost work days: (All occupational injuries and illnesses as defined in 30 CFR Part 50 except those listed below.) ........... E:\FR\FM\31JYP2.SGM 31JYP2 Penalty points 0 44518 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules TABLE XII—GRAVITY: SEVERITY— Continued Severity of injury or illness if the event has occurred or were to occur TABLE XIV—PENALTY CONVERSION TABLE Lost workdays or restricted duty: (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.) ............ Fatal: (Any work-related injury or illness resulting in death, or which has a reasonable potential to cause death.) .................. 5 10 TABLE XIII—GRAVITY: PERSONS POTENTIALLY AFFECTED Persons potentially affected if the event has occurred or were to occur Penalty points No: (No persons are affected by the condition or practice cited.) Yes: (One or more persons are affected by the condition or practice cited.) ........................... 0 1 * * * * (g) Penalty conversion table. The penalty conversion table is used to convert the sum of penalty points assigned for a violation (in paragraphs (b) through (f) of this section) to a civil penalty amount in dollars ($). wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 * VerDate Mar<15>2010 15:27 Jul 30, 2014 Jkt 232001 Penalty ($) Points Penalty points 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 PO 00000 or fewer ................................... .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. .................................................. Frm 00026 Fmt 4701 TABLE XIV—PENALTY CONVERSION TABLE—Continued Sfmt 9990 112 118 124 150 175 200 250 300 350 400 450 500 600 700 800 1,000 1,200 1,400 1,600 1,800 2,000 2,500 3,000 3,500 4,000 5,000 6,000 7,000 8,000 9,000 10,000 15,000 20,000 25,000 30,000 35,000 40,000 45,000 50,000 55,000 60,000 Points 72 .................................................. 73 or more .................................... Penalty ($) 65,000 70,000 (h) The effect of the penalty on the operator’s ability to continue in business. MSHA presumes that the operator’s ability to continue in business will not be affected by the assessment of a civil penalty. The operator may, however, submit financial information to MSHA’s Office of Assessments, Accountability, Special Enforcement and Investigations at 1100 Wilson Boulevard, 25th Floor, Arlington, Virginia 22209, concerning the financial status of the business. If the information provided by the operator indicates that the penalty will adversely affect the operator’s ability to continue in business, the penalty may be reduced. ■ 4. In § 100.4, revise paragraphs (a) and (b) to read as follows: § 100.4 Unwarrantable failure and immediate notification. (a) The minimum penalty for any citation or order issued under § 104(d)(1) of the Mine Act shall be $3,000. (b) The minimum penalty for any order issued under § 104(d)(2) of the Mine Act shall be $6,000. * * * * * [FR Doc. 2014–17935 Filed 7–29–14; 11:15 am] BILLING CODE 4510–43–P E:\FR\FM\31JYP2.SGM 31JYP2

Agencies

[Federal Register Volume 79, Number 147 (Thursday, July 31, 2014)]
[Proposed Rules]
[Pages 44493-44518]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-17935]



[[Page 44493]]

Vol. 79

Thursday,

No. 147

July 31, 2014

Part II





Department of Labor





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Mine Safety and Health Administration





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30 CFR Part 100





Criteria and Procedures for Assessment of Civil Penalties; Proposed 
Rule

Federal Register / Vol. 79 , No. 147 / Thursday, July 31, 2014 / 
Proposed Rules

[[Page 44494]]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 100

[Docket No. MSHA-2014-0009]
RIN 1219-AB72


Criteria and Procedures for Assessment of Civil Penalties

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Proposed rule.

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

SUMMARY: The Mine Safety and Health Administration (MSHA) is proposing 
to amend its civil penalty regulation to simplify the criteria, which 
will promote consistency, objectivity, and efficiency in the proposed 
assessment of civil penalties and facilitate the resolution of 
enforcement issues. The proposal would place a greater emphasis on the 
more serious safety and health conditions and provide improved safety 
and health for miners. MSHA is also proposing alternatives that would 
address the scope and applicability of its civil penalty regulation.

DATES: All comments must be received or postmarked by midnight Eastern 
Daylight Saving Time on September 29, 2014.

ADDRESSES: Comments and informational materials must be identified with 
``RIN 1219-AB72'' and sent to MSHA by one of the following methods:
     Federal E-Rulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments for Docket 
Number MSHA-2014-0009.
     Electronic Mail: zzMSHA-comments@dol.gov. Include ``RIN 
1219-AB72'' in the subject line of the message.
     Mail: MSHA, Office of Standards, Regulations, and 
Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209-
3939.
     Facsimile: 202-693-9441.
     Hand Delivery or Courier: MSHA, Office of Standards, 
Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, 
Arlington, Virginia 22209-3939, between 9:00 a.m. and 5:00 p.m. Monday 
through Friday, except Federal holidays. For hand delivery, sign in at 
the receptionist's desk on the 21st floor.

FOR FURTHER INFORMATION CONTACT: Sheila A. McConnell, Acting Director, 
Office of Standards, Regulations, and Variances, MSHA, at 
mcconnell.sheila.a@dol.gov (email); 202-693-9440 (voice); or 202-693-
9441 (facsimile).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Availability of Information
II. Background
    A. Statutory Background
    B. Regulatory Background
III. Section-by-Section Analysis
    A. Sec. Sec.  100.1 and 100.2; Scope and Purpose; Applicability
    B. General Discussion of Sec.  100.3
    C. Sec.  100.3(b) The Appropriateness of the Penalty to the Size 
of the Business of the Operator Charged
    D. Sec.  100.3(c) History of Previous Violations
    E. Sec.  100.3(d) Negligence
    F. Sec.  100.3(e) Gravity
    G. Sec.  100.3(f) Demonstrated Good Faith of the operator in 
abating the violation
    H. Sec.  100.3(g) Penalty Conversion Table
    I. Sec.  100.3(h) The Effect of the Penalty on the Operator's 
Ability to Continue in Business
    J. Sec.  100.4 Unwarrantable Failure and Immediate Notification
IV. Proposed Alternatives to Change the Scope, Purpose, and 
Applicability of this Part
    A. Regulatory Background and Commission Precedent
    B. Proposed Alternatives to the Existing Approach to Sec. Sec.  
100.1 and 100.2
V. Preliminary Regulatory Economic Analysis
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Population at Risk
    C. Benefits
    D. Projected Impacts
VI. Feasibility
VII. Regulatory Flexibility Analysis and Small Business Regulatory 
Enforcement Fairness Act
    A. Definition of a Small Mine
    B. Factual Basis for Certification
VIII. Paperwork Reduction Act of 1995
IX. Other Regulatory Considerations
    A. The Unfunded Mandates Reform Act of 1995
    B. Executive Order 13132: Federalism
    C. The Treasury and General Government Appropriations Act of 
1999: Assessment of Federal Regulations and Policies on Families
    D. Executive Order 12630: Government Actions and Interference 
With Constitutionally Protected Property Rights
    E. Executive Order 12988: Civil Justice Reform
    F. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. Executive Order 13272: Proper Consideration of Small Entities 
in Agency Rulemaking

I. Availability of Information

    Public Comments: MSHA posts all comments without change, including 
any personal information provided. Access comments electronically at 
http://www.msha.gov/currentcomments.asp and on http://www.regulations.gov. Review comments in person at the Office of 
Standards, Regulations, and Variances, 1100 Wilson Boulevard, Room 
2350, Arlington, Virginia. Sign in at the receptionist's desk on the 
21st floor.
    Email Notification: MSHA maintains a list that enables subscribers 
to receive an email notification when the Agency publishes rulemaking 
documents in the Federal Register. To subscribe, go to http://www.msha.gov/subscriptions/subscribe.aspx.

II. Background

A. Statutory Background

    Section 104 of the Federal Mine Safety and Health Act of 1977 (Mine 
Act) requires MSHA to issue citations or orders to mine operators for 
any violations of a mandatory safety or health standard, rule, order, 
or regulation promulgated under the Mine Act. On issuing a citation or 
order, the Secretary's authorized representative (inspector) specifies 
a time for the safety or health condition to be abated. Sections 105 
and 110 of the Mine Act require MSHA to propose a civil penalty for 
these violations. The Mine Act further requires assessment of civil 
penalties for violations. The following six criteria listed in 
Sec. Sec.  105(b)(1)(B) and 110(i) of the Mine Act are used to 
determine civil 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.
    30 U.S.C. 815(b)(1)(B), 820(i).
    MSHA proposes a civil penalty assessment for each violation. On 
receipt of the proposed assessment, the mine operator 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

[[Page 44495]]

becomes a final order of the Commission. If the mine operator chooses 
to contest the proposed penalty, the matter proceeds to a hearing 
before a Commission administrative law judge (ALJ). The ALJ then 
``issue[s] an order, based on findings of fact, affirming, modifying, 
or vacating the Secretary's citation, order, or proposed penalty.'' 30 
U.S.C. 815(d). The decision of the ALJ becomes the final order of the 
Commission unless the Commission decides to grant discretionary review 
within 40 days. 30 U.S.C. 823.

B. Regulatory Background

    MSHA's civil penalty regulation at 30 CFR part 100 provides two 
methods for proposing civil penalties: regular formula assessments and 
special assessments. The regular assessment method, under which MSHA 
applies the civil penalty formula in Sec. Sec.  100.3 and 100.4 to each 
violation, provides an appropriate proposed penalty for most 
violations. The special assessment method, in which MSHA manually 
applies the statutory penalty criteria, is used in a much smaller 
number of cases, such as those involving fatalities or willful 
violations. See Sec.  100.5. This proposed rule involves changes to 
MSHA's regular assessment penalty formula only. Because the proposed 
rule would require MSHA to change the Citation/Order form (MSHA Form 
7000-3), and MSHA considers the inspector's evaluations of the criteria 
in proposing penalties, the proposed rule also may have an indirect 
impact on special assessments.
    Since 2010, MSHA has implemented special initiatives and 
promulgated rules to enhance accountability of mine operators for 
violations and hazards at their mines. MSHA intended that its actions 
would encourage mine operators to find and fix conditions and practices 
that could lead to violations of a safety or health standard meant to 
prevent hazardous conditions or practices. One initiative, ``Rules to 
Live By,'' identified the types of violations most likely to lead to an 
accident, injury, or illness. MSHA began conducting impact inspections 
at appropriate mines to focus attention on prevention of hazards and 
prompt, continuing correction of violations.
    MSHA believes that its efforts have worked. Although the total 
number of mining operations in the United States decreased by 
approximately 0.5 percent from 2010 to 2013 (from 13,830 in 2010 to 
13,760 in 2013), the number of violations for which MSHA proposed a 
regular formula assessment decreased by approximately 26 percent (from 
164,500 in 2010 to 121,100 in 2013) and the percentage of violations 
contested decreased by approximately 6 percent (from 26 percent in 2010 
to 20 percent in 2013). Reduced numbers of violations, however, does 
not preclude the need for improvement in the civil penalty assessment 
process.
    MSHA analyzed the impact of the proposed rule by the type of mine 
and size of mine. The distribution of the penalty amount by mine size 
would remain generally the same; however, the penalty amount for small 
M/NM mines would decrease.

III. Section-by-Section Analysis

A. Sec. Sec.  100.1 and 100.2; Scope and Purpose; Applicability

    Existing Sec. Sec.  100.1 and 100.2 limit the scope and 
applicability of part 100 to proposed civil penalties only. To enhance 
consistency and predictability in the assessment of civil penalties, 
MSHA is considering alternatives that would broaden the scope and 
applicability of part 100 to include both proposed and assessed 
penalties. Section IV of this preamble explains these alternatives and 
their rationale.

B. General Discussion of Sec.  100.3

    MSHA's proposal to amend Sec.  100.3 is guided by four key 
principles:
    (1) Improvement in consistency, objectivity, and efficiency in how 
inspectors write citations and orders by reducing the number of 
decisions needed;
    (2) Simplification of penalty criteria, which should lead to fewer 
areas of dispute and earlier resolution of enforcement issues;
    (3) Greater emphasis on the more serious safety and health 
conditions; and
    (4) Openness and transparency in the application of the Agency's 
regular formula penalty criteria.
    When issuing citations or orders, inspectors are required to 
evaluate safety and health conditions and to make decisions about five 
of the six statutory criteria. The proposed rule would simplify the 
gravity and negligence criteria and place an increased emphasis on the 
more serious hazards. Simplifying the criteria would increase 
objectivity and clarity in the citation and order process. The proposed 
changes should result in fewer areas of disagreement and earlier 
resolution of enforcement issues. The proposal would require 
corresponding changes to the Mine Citation/Order form (MSHA Form 7000-
3).
    The proposal is structured to encourage operators to be more 
accountable and proactive in addressing safety and health conditions at 
their mines. Under the proposal, total penalties proposed by MSHA would 
remain generally the same. The proposal would place an increased 
emphasis on Negligence, Violation History, and the Severity factor of 
Gravity to more appropriately address factors that directly impact 
miner safety and health. The proposal would place less emphasis on mine 
size, with slightly less emphasis on controller and contractor sizes.
    Table 1 below shows the existing and proposed penalty point ranges 
for each of the criteria, including penalty point ranges as a 
percentage of the total maximum points under the existing and proposed 
rules. Proposed Sec.  100.3 would reduce the maximum number of penalty 
points that could be assigned from 208 under the existing rule to 100.

                               Table 1--Existing and Proposed Penalty Point Ranges
----------------------------------------------------------------------------------------------------------------
                                               Existing rule                           Proposed rule
                                 -------------------------------------------------------------------------------
                                                         Penalty point                           Penalty point
            Criteria                                      range as a                              range as a
                                     Penalty point       percentage of       Penalty point       percentage of
                                         range           total maximum           range           total maximum
                                                         points**(***)                             points***
----------------------------------------------------------------------------------------------------------------
Mine Size.......................  0 to 15...........  0% to 7%..........  0 to 4............  0% to 4%.
Controller Size.................  1 to 10...........  0.5% to 5%........  1 to 4............  1% to 4%.
Contractor Size *...............  0 to 25...........  0% to 12%.........  0 to 8............  0% to 8%.
    TOTAL Size Criterion........  0 to 25...........  0% to 12%.........  0 to 8............  0% to 8%.
Overall Violations..............  0 to 25...........  0% to 12%.........  0 to 16...........  0% to 16%.
Repeat Violations...............  0 to 20...........  0% to 10%.........  0 to 10...........  0% to 10%.
    TOTAL Violation History       0 to 45...........  0% to 22%.........  0 to 26...........  0% to 26%.
     Criterion.

[[Page 44496]]

 
    TOTAL Negligence Criterion..  0 to 50...........  0% to 24%.........  0 to 30...........  0% to 30%.
Likelihood......................  0 to 50...........  0% to 24%.........  0 to 25...........  0% to 25%.
Severity........................  0 to 20...........  0% to 10%.........  0 to 10...........  0% to 10%.
Persons Affected................  0 to 18...........  0% to 9%..........  0 to 1............  0% to 1%.
    TOTAL Gravity Criterion.....  0 to 88...........  0% to 42%.........  0 to 36...........  0% to 36%.
    Total Maximum Points........  208...............  ..................  100                 ..................
----------------------------------------------------------------------------------------------------------------
* Points for contractor size equal the sum of the points for mine and controller sizes for operators.
** Maximum points add to over 100 percent due to rounding.
*** Conversion uses 208 points for the existing rule and 100 points for the proposed rule.

    In developing the proposal, MSHA evaluated the impact of the 
proposed changes using actual violation data. MSHA analyzed the 121,089 
violations for which the Agency proposed assessments under the existing 
regular formula between January 1, 2013 and December 31, 2013 
(baseline), the most recent year of available data. MSHA compared the 
impact of the proposed changes on individual penalties and on total 
penalties. First, the relative weights of the existing criteria were 
established as a benchmark by calculating the total points associated 
with each criterion as a percentage of total penalty points for all 
violations assessed against mine operators and independent contractors 
during the baseline period. Next, MSHA applied the proposed criteria to 
each violation assessed during the baseline period. For some criteria 
(e.g., Size and Violation History), the calculation was 
straightforward. For other criteria (e.g., Negligence and Gravity), 
MSHA made assumptions about how the inspector would evaluate degrees of 
negligence and gravity and allocated proposed penalty points so that 
the aggregate civil penalty amount proposed under the proposed rule 
would be comparable to the aggregate civil penalty amount proposed 
under the existing rule. Finally, the relative weight of each proposed 
criterion was determined by calculating total points associated with 
each criterion as a percentage of total penalty points that would have 
been assessed if the proposed rule had been in effect during the 
baseline period. The results of this analysis are presented in Table 2 
below.

            Table 2--Comparison of Relative Weights of Criteria Under the Existing and Proposed Rules
----------------------------------------------------------------------------------------------------------------
                                               Existing rule                           Proposed rule
                                 -------------------------------------------------------------------------------
            Criteria              Penalty points for  % of total penalty  Penalty points for  % of total penalty
                                       criterion            points             criterion            points
----------------------------------------------------------------------------------------------------------------
Mine Size.......................  853,482...........  10.9..............  218,902...........  5.7
Controller Size.................  661,044...........  8.5...............  272,712...........  7.1
Contractor Size.................  56,077............  0.7...............  15,762............  0.4
    TOTAL Size Criterion........  1,570,603.........  20.1..............  507,376...........  13.2
Overall Violations *............  758,394...........  9.7...............  517,410...........  13.5
Repeat Violations...............  145,111...........  1.9...............  78,154............  2.0
    TOTAL Violation History       903,505...........  11.6..............  595,564...........  15.5
     Criterion *.
    TOTAL Negligence Criterion *  2,350,120.........  30.1..............  1,510,485.........  39.3
Likelihood......................  1,799,400.........  23.1..............  461,820...........  12.0
Severity *......................  953,235...........  12.2..............  651,120...........  17.0
Persons Affected................  228,835...........  2.9...............  114,994...........  3.0
    TOTAL Gravity Criterion.....  2,981,470.........  38.2..............  1,227,934.........  32.0
    TOTAL Penalty Points for      7,805,698.........  ..................  3,841,359.........  ..................
     121,089 violations.
----------------------------------------------------------------------------------------------------------------
* Proposal would increase the criterion's relative weight as a percentage of all penalty points.

    MSHA's analysis indicates that the relative weights of penalty 
criteria would change under the proposed rule. The relative weights of 
the Size criterion, which reflects mine size, controller size, and 
contractor size, and the Gravity criterion, which reflects likelihood, 
severity, and persons affected, would decrease under the proposal. 
Although the total relative weight of the Gravity criterion would 
decrease, the relative weight of the Severity factor of the Gravity 
criterion would increase to reflect MSHA's increased emphasis on more 
serious hazards. The relative weights of the Violation History 
criterion, which reflects overall violations plus repeat violations, 
and the Negligence criterion would increase under the proposal.

C. Sec.  100.3(b) The Appropriateness of the Penalty to the Size of the 
Business of the Operator Charged

    Proposed Sec.  100.3(b) would reduce the penalty points for 
operator and contractor size. The existing rule contains five tables 
assigning penalty points for size of coal mines, controlling entities 
of coal mines, metal and nonmetal mines (M/NM), controlling entities of 
M/NM mines, and independent contractors. The size of coal mines and 
their controlling entities is measured by the amount of coal 
production. The size of M/NM 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 contractor at all mines

[[Page 44497]]

regardless of the commodity being mined. Existing Sec.  100.3(b) 
assigns up to 15 penalty points for mine size, up to 10 penalty points 
for the size of the controlling entity, and up to 25 penalty points for 
the size of independent contractors.
    Under this provision, MSHA proposes to reduce the penalty points 
for mine size and controlling entity and decrease the number of penalty 
points for operators and independent contractors. The maximum number of 
penalty points would decrease from 15 to 4 for mine size, from 10 to 4 
for size of controlling entity, and from 25 to 8 for size of 
independent contractor. As seen in Table 1 of this preamble, this 
proposed change would decrease the maximum points for this criterion as 
a percentage of total maximum points, from 12 percent (25/208) under 
the existing rule to 8 percent (8/100) under the proposed rule. As seen 
in Table 2 of this preamble, the proposed rule would decrease the 
relative weight of mine size (i.e., from 10.9 percent of total penalty 
points under the existing rule to 5.7 percent under the proposal); 
controller size (i.e., from 8.5 percent of total penalty points under 
the existing rule to 7.1 percent under the proposal); and contractor 
size (i.e., from 0.7 percent of total penalty points under the existing 
rule to 0.4 percent under the proposal). Refer to section VII.B. 
Factual Basis for Certification of this preamble for the explanation of 
MSHA's evaluation of the projected impact of the proposal on small 
entities.

                                       Part 100 Table I--Size of Coal Mine
----------------------------------------------------------------------------------------------------------------
                         Existing rule                                            Proposed rule
----------------------------------------------------------------------------------------------------------------
                                              Penalty points                                     Penalty points
     Annual tonnage of  mine (x 1,000)        (out of maximum    Annual tonnage  of mine  (x    (out of maximum
                                                208 points)                 1,000)                100 points)
----------------------------------------------------------------------------------------------------------------
0 to 7.5..................................                  1
>7.5 to 10................................                  2
>10 to 15.................................                  3   0 to 50......................                  1
>15 to 20.................................                  4
>20 to 30.................................                  5
>30 to 50.................................                  6
>50 to 70.................................                  7
>70 to 100................................                  8
>100 to 200...............................                  9   >50 to 500...................                  2
>200 to 300...............................                 10
>300 to 500...............................                 11
>500 to 700...............................                 12   >500 to 1,000................                  3
>700 to 1,000.............................                 13
>1,000 to 2,000...........................                 14   >1,000.......................                  4
>2,000....................................                 15
----------------------------------------------------------------------------------------------------------------


                            Part 100 Table II--Size of Controlling Entity--Coal Mine
----------------------------------------------------------------------------------------------------------------
                         Existing rule                                            Proposed rule
----------------------------------------------------------------------------------------------------------------
                                              Penalty points                                     Penalty points
         Annual tonnage  (x 1,000)            (out of maximum     Annual tonnage  (x 1,000)     (out of maximum
                                                208 points)                                       100 points)
----------------------------------------------------------------------------------------------------------------
0 to 50...................................                  1
>50 to 100................................                  2   0 to 200.....................                  1
>100 to 200...............................                  3
>200 to 300...............................                  4
>300 to 500...............................                  5   >200 to 700..................                  2
>500 to 700...............................                  6
>700 to 1,000.............................                  7   >700 to 3,000................                  3
>1,000 to 3,000...........................                  8
>3,000 to 10,000..........................                  9   >3,000.......................                  4
>10,000...................................                 10
----------------------------------------------------------------------------------------------------------------


                                 Part 100 Table III--Size of Metal/Nonmetal Mine
----------------------------------------------------------------------------------------------------------------
                         Existing rule                                            Proposed rule
----------------------------------------------------------------------------------------------------------------
                                              Penalty points                                     Penalty points
  Annual hours  worked at mine  (x 1,000)     (out of maximum    Annual tonnage  of mine  (x    (out of maximum
                                                208 points)                 1,000)                100 points)
----------------------------------------------------------------------------------------------------------------
0 to 5....................................                  0   0 to 5.......................                  0
>5 to 10..................................                  1
>10 to 20.................................                  2
>20 to 30.................................                  3
>30 to 50.................................                  4   >5 to 200....................                  1
>50 to 100................................                  5
>100 to 200...............................                  6
>200 to 300...............................                  7

[[Page 44498]]

 
>300 to 500...............................                  8
>500 to 700...............................                  9   >200 to 1,500................                  2
>700 to 1,000.............................                 10
>1,000 to 1,500...........................                 11
>1,500 to 2,000...........................                 12   >1,500 to 3,000..............                  3
>2,000 to 3,000...........................                 13
>3,000 to 5,000...........................                 14   >3,000.......................                  4
>5,000....................................                 15
----------------------------------------------------------------------------------------------------------------


                       Part 100 Table IV--Size of Controlling Entity--Metal/Nonmetal Mine
----------------------------------------------------------------------------------------------------------------
                         Existing rule                                            Proposed rule
----------------------------------------------------------------------------------------------------------------
                                              Penalty points                                     Penalty points
      Annual hours worked  (x 1,000)          (out of maximum   Annual hours worked (x 1,000)   (out of maximum
                                                208 points)                                       100 points)
----------------------------------------------------------------------------------------------------------------
0 to 50...................................                  0   0 to 50......................                  0
>50 to 100................................                  1
>100 to 200...............................                  2   >50 to 300...................                  1
>200 to 300...............................                  3
>300 to 500...............................                  4
>500 to 1,000.............................                  5   >300 to 2,000................                  2
>1,000 to 2,000...........................                  6
>2,000 to 3,000...........................                  7   >2,000 to 5,000..............                  3
>3,000 to 5,000...........................                  8
>5,000 to 10,000..........................                  9   >5,000.......................                  4
>10,000...................................                 10
----------------------------------------------------------------------------------------------------------------


                                Part 100 Table V--Size of Independent Contractor
----------------------------------------------------------------------------------------------------------------
                         Existing rule                                            Proposed rule
----------------------------------------------------------------------------------------------------------------
                                              Penalty points                                     Penalty points
Annual hours worked at all mines (x 1,000)    (out of maximum     Annual hours worked at all    (out of maximum
                                                208 points)            mines  (x 1,000)           100 points)
----------------------------------------------------------------------------------------------------------------
0 to 5....................................                  0   0 to 5.......................                  0
>5 to 7...................................                  2   >5 to 10.....................                  1
>7 to 10..................................                  4
>10 to 20.................................                  6   >10 to 30....................                  2
>20 to 30.................................                  8
>30 to 50.................................                 10   >30 to 70....................                  3
>50 to 70.................................                 12
>70 to 100................................                 14   >70 to 200...................                  4
>100 to 200...............................                 16
>200 to 300...............................                 18   >200 to 500..................                  5
>300 to 500...............................                 20
>500 to 700...............................                 22   >500 to 700..................                  6
>700 to 1,000.............................                 24   >700 to 1,000................                  7
>1,000....................................                 25   >1,000.......................                  8
----------------------------------------------------------------------------------------------------------------

D. Sec.  100.3(c) History of Previous Violations

    The proposal would revise Sec.  100.3(c), history of previous 
violations, to increase the penalty points for this criterion as a 
percentage of total penalty points. Existing Sec.  100.3(c) bases the 
operator's violation history on the total number of violations and the 
number of repeat violations of the same citable provision of a standard 
in the 15-month period preceding the occurrence date of the violation 
being assessed. The existing rule states that only ``violations that 
have been paid, finally adjudicated, or have become final orders of the 
Commission'' (final orders) are included in determining an operator's 
violation history. MSHA is proposing to clarify its intent under the 
existing rule that only ``violations that have become final orders of 
the Commission'' are included in determining an operator's violation 
history. This proposed change is nonsubstantive and would reduce 
confusion and more accurately reflect the Agency's intent to use only 
violations that became final orders during the 15-month period 
preceding the occurrence date of the violation being assessed in 
calculating violation history.
    Under the existing rule, operators are assigned penalty points 
based on the number of Violations Per Inspection Day

[[Page 44499]]

and the number of Repeat Violations Per Inspection Day. For independent 
contractors, penalty points are assigned on the basis of the total 
number of violations and total number of repeat violations at all 
mines. MSHA is proposing to clarify paragraph (c) by removing the 
reference to paragraph (c)(2) and stating directly in paragraph (c)(2) 
when the repeat aspect of the Violation History criterion applies.
    As shown in Table 2 of this preamble, the proposed changes would 
increase the relative weight for the History of Violations criterion 
penalty points from 11.6 percent of total penalty points under the 
existing rule to 15.5 percent under the proposed rule. The relative 
weight for overall violations penalty points would increase from 9.7 
percent of total penalty points under the existing rule to 13.5 percent 
under the proposal, in recognition of the importance of the need for 
operators to prevent violations from occurring. The relative weight for 
repeat violations penalty points would remain unchanged at 
approximately 2 percent of total penalty points under the existing and 
proposed rules.
1. History of Overall Violations
    MSHA is proposing to change how an operator's overall violation 
history would be determined. The Violations Per Inspection Day formula 
under the existing rule may result in relatively high violation history 
points that do not reflect conditions at the smaller M/NM operations. 
At these mines, a small number of violations over a one or two-day 
inspection can result in a relatively high Violations Per Inspection 
Day rate. During the baseline period, 12 percent of the M/NM violations 
received the maximum 25 points compared with one percent of the coal 
violations. MSHA's proposed revision would address this concern. Tables 
3 and 4 below show the distributions of penalty points for Violations 
Per Inspection Day for mines under the existing and the proposed rules.

               Table 3--Existing Distribution of Penalty Points for Violations Per Inspection Day
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Points                                      Coal mines
                                            M/NM mines                     Total
----------------------------------------------------------------------------------------------------------------
0...............................           8,713             14%          28,042             55%          36,755
2...............................          10,816             18%           1,322              3%          12,138
5...............................          15,917             26%           2,432              5%          18,349
8...............................          11,590             19%           2,543              5%          14,133
10..............................           5,240              9%           2,784              5%           8,024
12..............................           3,449              6%           2,319              5%           5,768
14..............................           2,543              4%           1,895              4%           4,438
16..............................           1,124              2%           1,519              3%           2,643
19..............................             655              1%           1,296              3%           1,951
22..............................             318              1%           1,016              2%           1,334
25..............................             589              1%           6,215             12%           6,804
                                 -------------------------------------------------------------------------------
    Total.......................          60,954  ..............          51,383  ..............         112,337
----------------------------------------------------------------------------------------------------------------


   Table 4--Projected Distribution of Penalty Points for Violations Per Inspection Day Under the Proposed Rule
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Points                                      Coal mines
                                            M/NM mines                     Total
----------------------------------------------------------------------------------------------------------------
0...............................           8,862             15%          34,519             67%          43,381
2...............................          10,816             18%           1,322              3%          12,138
5...............................          15,917             26%           2,432              5%          18,349
8...............................          11,590             19%           2,543              5%          14,133
10..............................           5,237              9%           2,694              5%           7,931
11..............................           3,433              6%           2,020              4%           5,453
12..............................           2,529              4%           1,432              3%           3,961
13..............................           1,113              2%           1,060              2%           2,173
14..............................             628              1%             831              2%           1,459
15..............................             312              1%             607              1%             919
16..............................             517              1%           1,923              4%           2,440
                                 -------------------------------------------------------------------------------
    Total.......................          60,954  ..............          51,383  ..............         112,337
----------------------------------------------------------------------------------------------------------------

    The proposed rule would provide for a more equitable impact of the 
Violations Per Inspection Day formula on small mines. The existing rule 
assigns zero points when a mine has fewer than 10 violations that 
became final orders over the 15-month period preceding the occurrence 
date of the violation being assessed. Under the proposal, MSHA would 
assign zero points when a mine has either fewer than 10 violations or 
10 or fewer inspection days over the 15-month period preceding the 
occurrence date of the violation being assessed. MSHA analyzed this 
approach using historical data from the baseline period and determined 
that although it would reduce the impact of Violations Per Inspection 
Day on smaller mines, it would continue to hold operators of small 
mines accountable for repeat violations.
    MSHA is proposing to restructure the point tables related to 
Violation History to reflect a modest increase in the relative weight 
of this criterion. Part 100 Table VI shows both the existing and 
proposed point schedules for overall history of violations for mine 
operators. Part 100 Table VII shows both the existing and proposed 
point schedules for overall history of violations for independent 
contractors. Under the proposal, the maximum number of penalty points 
for Violation History would decrease from 25 to 16 for both mine 
operators and independent contractors.

[[Page 44500]]



   Part 100 Table VI--History of Previous Violations--Mine Operators*
------------------------------------------------------------------------
                                     Existing penalty   Proposed penalty
    Overall history: number of        points (out of     points (out of
   violations per inspection day       maximum 208        maximum 100
                                         points)            points)
------------------------------------------------------------------------
0 to 0.3..........................                  0                  0
>0.3 to 0.5.......................                  2                  2
>0.5 to 0.7.......................                  5                  5
>0.7 to 0.9.......................                  8                  8
>0.9 to 1.1.......................                 10                 10
>1.1 to 1.3.......................                 12                 11
>1.3 to 1.5.......................                 14                 12
>1.5 to 1.7.......................                 16                 13
>1.7 to 1.9.......................                 19                 14
>1.9 to 2.1.......................                 22                 15
>2.1..............................                 25                 16
------------------------------------------------------------------------
* Under the proposal, MSHA would assign zero points when a mine has
  either fewer than 10 violations that became final orders or 10 or
  fewer inspection days over the 15-month period preceding the
  occurrence date of the violation being assessed.


                  Part 100 Table VII--History of Previous Violations--Independent Contractors*
----------------------------------------------------------------------------------------------------------------
                               Existing rule                                            Proposed rule
----------------------------------------------------------------------------------------------------------------
                                                                             Overall history:
                                                           Penalty points       number of        Penalty points
   Overall history: number of violations at all mines     (out of maximum   violations at all   (out of maximum
                                                            208 points)           mines           100 points)
----------------------------------------------------------------------------------------------------------------
0 to 5.................................................                  0             0 to 5                  0
6......................................................                  1                6-7                  1
7......................................................                  2
8......................................................                  3                8-9                  2
9......................................................                  4
10.....................................................                  5              10-11                  3
11.....................................................                  6
12.....................................................                  7              12-13                  4
13.....................................................                  8
14.....................................................                  9              14-15                  5
15.....................................................                 10
16.....................................................                 11              16-17                  6
17.....................................................                 12
18.....................................................                 13              18-19                  7
19.....................................................                 14
20.....................................................                 15              20-21                  8
21.....................................................                 16
22.....................................................                 17              22-23                  9
23.....................................................                 18
24.....................................................                 19                 24                 10
25.....................................................                 20                 25                 11
26.....................................................                 21                 26                 12
27.....................................................                 22                 27                 13
28.....................................................                 23                 28                 14
29.....................................................                 24                 29                 15
>29....................................................                 25                >29                 16
----------------------------------------------------------------------------------------------------------------
* Under the proposal, MSHA would assign zero points when an independent contractor has fewer than six violations
  that became final orders over the 15-month period preceding the occurrence date of the violation being
  assessed.

    MSHA is interested in alternatives that address the proposed point 
tables for Violation History for mine operators and independent 
contractors. MSHA is particularly interested in alternatives that 
address the impact of the proposed Violations Per Inspection Day 
formula on small mine operators with fewer than 10 violations that 
became final orders or 10 or fewer inspection days over the 15-month 
period preceding the occurrence date of the violation being assessed. 
Commenters are requested to be specific in their comments and submit 
detailed rationale and supporting documentation for any suggested 
alternative.
2. History of Repeat Violations
    The proposed rule would clarify that the repeat violations aspect 
of the proposal would apply only after--
     A mine operator has, over the 15-month period preceding 
the occurrence date of the violation being assessed--
    [cir] A minimum of 10 violations, which became final orders, and
    [cir] More than 10 inspection days, and
    [cir] Six repeat violations of the same citable provision of a 
standard, which became final orders; or
     An independent contractor has, over the 15-month period 
preceding the occurrence date of the violation being assessed--
    [cir] A minimum of six violations at all mines, which became final 
orders, and
    [cir] Six repeat violations of the same citable provision of a 
standard, which became final orders.
    MSHA proposes to revise the point tables for repeat violations of 
the same

[[Page 44501]]

standard to reduce the penalty points from a maximum of 20 points to a 
maximum of 10 points. This proposed change would not result in a change 
in the maximum points for this criterion as a percentage of total 
maximum points, as it is currently 10 percent.
    The proposed point structure would lower the value at which a mine 
operator would receive the maximum penalty points for Repeat Violations 
Per Inspection Day from >1.0 under the existing rule to >0.5 under the 
proposed rule because a history of repeat violations demonstrates a 
lack of concern for the safety and health of miners. Higher penalties 
for these operators would serve to encourage them to be more proactive 
in their approach to safety and health and prevent safety and health 
hazards before they occur.
    Part 100 Tables VIII and IX in this preamble show both the existing 
and proposed point schedules for Repeat Violations.

     Part 100 Table VIII--History of Previous Violations--Repeat Violations for Coal and Metal/Nonmetal Mine
                               Operators With a Minimum of Six Repeat Violations*
----------------------------------------------------------------------------------------------------------------
                         Existing rule                                            Proposed rule
----------------------------------------------------------------------------------------------------------------
                                               Penalty points                                    Penalty points
 Number of repeat violations per inspection   (out of maximum    Number of repeat violations    (out of maximum
                    day                         208 points)           per inspection day          100 points)
----------------------------------------------------------------------------------------------------------------
0 to 0.01..................................                  0  0 to 0.01....................                  0
>0.01 to 0.015.............................                  1  >0.01 to 0.02................                  1
>0.015 to 0.02.............................                  2
>0.02 to 0.025.............................                  3  >0.02 to 0.03................                  2
>0.025 to 0.03.............................                  4
>0.03 to 0.04..............................                  5  >0.03 to 0.05................                  3
>0.04 to 0.05..............................                  6
>0.05 to 0.06..............................                  7  >0.05 to 0.08................                  4
>0.06 to 0.08..............................                  8
>0.08 to 0.10..............................                  9  >0.08 to 0.12................                  5
>0.10 to 0.12..............................                 10
>0.12 to 0.14..............................                 11  >0.12 to 0.16................                  6
>0.14 to 0.16..............................                 12
>0.16 to 0.18..............................                 13  >0.16 to 0.20................                  7
>0.18 to 0.20..............................                 14
>0.20 to 0.25..............................                 15  >0.2 to 0.3..................                  8
>0.25 to 0.3...............................                 16
>0.3 to 0.4................................                 17  >0.3 to 0.5..................                  9
>0.4 to 0.5................................                 18
>0.5 to 1.0................................                 19  >0.5.........................                 10
>1.0.......................................                 20
----------------------------------------------------------------------------------------------------------------
* Under the proposal, MSHA would assign zero points when a mine has either fewer than 10 violations that became
  final orders or 10 or fewer inspection days, and fewer than six repeat violations that became final orders,
  over the 15-month period preceding the occurrence date of the violation being assessed.


Part 100 Table IX--History of Previous Violations--Repeat Violations for
                        Independent Contractors*
------------------------------------------------------------------------
                                     Existing penalty   Proposed penalty
Number of repeat violations of the    points (out of     points (out of
    same standard at all mines         maximum 208        maximum 100
                                         points)            points)
------------------------------------------------------------------------
<6................................                  0                  0
6.................................                  2                  1
7.................................                  4                  2
8.................................                  6                  3
9.................................                  8                  4
10................................                 10                  5
11................................                 12                  6
12................................                 14                  7
13................................                 16                  8
14................................                 18                  9
>14...............................                 20                 10
------------------------------------------------------------------------
* Under the proposal, MSHA would assign zero points when an independent
  contractor has fewer than six violations or fewer than six repeat
  violations that became final orders over the 15-month period preceding
  the occurrence date of the violation being assessed.

    MSHA is interested in comments that address alternatives to the 
proposed revisions to the point tables for Repeat Violations Per 
Inspection Day for mine operators and Total Number of Repeat Violations 
at All Mines for independent contractors. Commenters are requested to 
be specific in their comments and submit detailed rationale and 
supporting documentation for any suggested alternative.

E. Sec.  100.3(d) Negligence

    Proposed Sec.  100.3(d) would revise the negligence criterion to 
increase accountability for operators who either knew, or should have 
known, of safety and health hazards at their mines. It would reduce the 
number of negligence

[[Page 44502]]

categories from five to three. The existing rule lists the following 
five categories that MSHA uses to evaluate the degree of negligence 
involved with a violation:
    (1) No Negligence means that the operator exercised diligence and 
could not have known of the violative condition or practice.
    (2) Low Negligence means that the operator knew or should have 
known of the violative condition or practice, but there are 
considerable mitigating circumstances.
    (3) Moderate Negligence means that the operator knew or should have 
known of the violative condition or practice, but there are mitigating 
circumstances.
    (4) High Negligence means the operator knew or should have known of 
the violative condition or practice, and there are no mitigating 
circumstances.
    (5) Reckless Disregard means the operator displayed conduct that 
exhibits the absence of the slightest degree of care.
    In the majority of contested cases before the Commission, the issue 
is not whether a violation occurred. Rather, the parties disagree on 
the gravity of the violation, the degree of mine operator negligence, 
and other criteria.
    Regarding negligence, Sec.  105(b)(1)(B) of the Mine Act requires 
that the Secretary determine whether the operator was negligent. MSHA 
believes that reducing the number of negligence categories would 
improve objectivity and consistency in the evaluation of negligence, 
resulting in fewer areas of disagreement, thereby facilitating 
resolution of enforcement issues. The proposal would reduce the 
existing five categories of negligence to three: (1) Not Negligent; (2) 
Negligent; or (3) Reckless Disregard. The proposed reduction in the 
number of categories would not change the definitions of the remaining 
categories, with one exception. The definition of Negligent would read 
that ``The operator knew or should have known about the violative 
condition or practice.'' The existing Mine Citation/Order form (MSHA 
Form 7000-3) that MSHA inspectors use when issuing citations and orders 
would also be revised to reflect the proposed changes.
    Correspondingly, the proposed rule would restructure the point 
table for the proposed categories to reflect an increase in the 
relative weight of this criterion. MSHA believes that this proposed 
change would result in assessments that appropriately reflect actions 
under the control of operators that have a direct impact on miner 
safety and health. Part 100 Table X in this preamble shows the existing 
and proposed schedules for negligence.
    Under the proposal, the maximum number of penalty points for this 
criterion would decrease from 50 to 30 and the maximum points as a 
percentage of total maximum points would increase from 24 percent to 30 
percent. Under the proposed rule, points for ``No Negligence'' would 
not change. Penalty points assigned under the remaining two categories 
of negligence would decrease from the values under the existing 
regulation. As shown in Table 2 of this preamble, MSHA's evaluation of 
the impact of the proposed changes, based on baseline violation data, 
indicates that the relative weight of Negligence penalty points would 
increase from 30 percent of total penalty points under the existing 
rule to 39 percent of total penalty points under the proposed rule.

                                          Part 100 Table X--Negligence
----------------------------------------------------------------------------------------------------------------
                         Existing rule                                            Proposed rule
----------------------------------------------------------------------------------------------------------------
                                               Penalty points                                    Penalty points
                 Categories                   (out of maximum             Categories            (out of maximum
                                                208 points)                                       100 points)
----------------------------------------------------------------------------------------------------------------
No Negligence (The operator exercised                        0  Not Negligent (The operator                    0
 diligence and could not have known of the                       exercised diligence and
 violative condition or practice.).                              could not have known of the
                                                                 violative condition or
                                                                 practice.).
Low Negligence (The operator knew or should                 10
 have known about the violative condition
 or practice, but there are considerable
 mitigating circumstances.).
Moderate Negligent (The operator knew or                    20  Negligent (The operator knew                  15
 should have known about the violative                           or should have known about
 condition or practice, but there are                            the violative condition or
 mitigating circumstances.).                                     practice.).
High Negligence (The operator knew or                       35
 should have known about the violative
 condition or practice, but there are
 mitigating circumstances.).
Reckless Disregard (The operator displayed                  50  Reckless Disregard (The                       30
 conduct which exhibits the absence of the                       operator displayed conduct
 slightest degree of care.).                                     which exhibits the absence
                                                                 of the slightest degree of
                                                                 care.).
----------------------------------------------------------------------------------------------------------------

    MSHA is interested in comments that address alternatives to 
improving consistency and objectivity in the application of the 
proposed negligence criterion. Commenters are requested to be specific 
in their comments and submit detailed rationale and supporting 
documentation for any suggested alternative.

F. Sec.  100.3(e) Gravity

    Proposed Sec.  100.3(e) would revise the existing gravity criterion 
to reduce the overall impact of this criterion, but increase the aspect 
of the criterion as it relates to more serious hazards.
    The existing rule provides three factors to measure the gravity of 
a violation: (1) the likelihood of the occurrence of an event against 
which a standard is directed (five categories for a maximum of 50 
points); (2) the severity of injury or illness if the event occurred or 
were to occur (four categories for a maximum of 20 points); and (3) the 
number of persons potentially affected if the event occurred or were to 
occur (11 categories for a maximum of 18 points). MSHA is proposing to 
adjust the maximum number of penalty points for the Gravity criterion 
from 88 total points under the

[[Page 44503]]

existing rule to 36 total points under the proposed rule and 
redistribute the weights of penalty points to reflect an increased 
emphasis on the severity of safety and health hazards.
    The proposed provision would retain the three Gravity factors but 
would reduce the number of subcategories associated with each factor. 
Similar to the Agency's proposed changes to the Negligence criterion, 
the proposal would simplify the categories in each proposed Gravity 
factor to decrease subjectivity and improve objectivity and 
consistency. MSHA believes that the Likelihood of the occurrence of an 
event that could result in an injury or illness and the Severity of a 
potential injury or illness if the event were to occur, are both 
important to miner safety and health. The proposal, however, would 
decrease the relative weight of Likelihood penalty points and increase 
the relative weight of Severity penalty points as a percentage of total 
penalty points. Tables XI through XIII show both the existing and the 
proposed points for the three Gravity criterion factors.
    Likelihood. The proposal would reduce the existing five categories 
of Likelihood of the occurrence of an event against which a standard is 
directed to three: (1) Unlikely; (2) Reasonably Likely; or (3) 
Occurred. It would combine the existing categories of ``No Likelihood'' 
and ``Unlikely'' to improve objectivity and consistency of enforcement. 
Also to improve consistency, the proposal would eliminate the ``Highly 
Likely'' category. Part 100 Table XI would include a proposed 
definition for each category. These proposed changes would simplify the 
enforcement process, improve objectivity and consistency, and improve 
safety and health protection for miners.
    The proposal would restructure the point table to reflect a 
decrease in the relative weight of Likelihood. As shown in Table 2 of 
this preamble, MSHA's evaluation of the impact of the proposed changes, 
based on baseline violation data, indicates that the relative weight of 
Likelihood is projected to decrease from 23.1 percent of total penalty 
points under the existing rule to 12.0 percent under the proposal.
    Part 100 Table XI in this preamble shows the existing and proposed 
penalty point schedule for Likelihood. The maximum number of penalty 
points would decrease from 50 under the existing rule to 25 under the 
proposal. Under the proposed rule, ``Unlikely'' would not accrue any 
points. The proposed penalty points assigned to ``Reasonably Likely'', 
as a percentage of total penalty points, would remain about the same. 
The proposed maximum points for Likelihood, like the existing rule, 
would be 25 percent of total maximum points.

                                     Part 100 Table XI--Gravity: Likelihood
----------------------------------------------------------------------------------------------------------------
                       Existing rule                                            Proposed rule
----------------------------------------------------------------------------------------------------------------
                                            Penalty points                                       Penalty points
        Likelihood of occurrence           (out of maximum       Likelihood of occurrence       (out of maximum
                                             208 points)                                          100 points)
----------------------------------------------------------------------------------------------------------------
No Likelihood...........................                  0  Unlikely........................                  0
                                                             (Condition or practice cited has
                                                              little or no likelihood of
                                                              causing an event that could
                                                              result in an injury or
                                                              illness.).
Unlikely................................                 10
Reasonably Likely.......................                 30  Reasonably Likely...............                 14
                                                             (Condition or practice cited is
                                                              likely to cause an event that
                                                              could result in an injury or
                                                              illness.).
Highly Likely...........................                 40
Occurred................................                 50  Occurred........................                 25
                                                             (Condition or practice cited has
                                                              caused an event that has
                                                              resulted or could have resulted
                                                              in an injury or illness.).
----------------------------------------------------------------------------------------------------------------

    MSHA solicits comments on alternatives to the proposed Likelihood 
factor of the Gravity criterion that would improve objectivity and 
consistency in enforcement. Commenters are requested to be specific in 
their comments and submit detailed rationale and supporting 
documentation for any suggested alternative.
    Severity. The proposal would reduce the four existing categories of 
severity of injury or illness to three: (1) No Lost Workdays; (2) Lost 
Workdays or Restricted Duty; or (3) Fatal. It would eliminate the 
existing ``Permanently Disabling'' category, which is often difficult 
to anticipate. Consistent with proposed changes for other criteria, 
MSHA believes that reducing the number of categories would simplify the 
Severity factor, resulting in improved objectivity and consistency in 
the enforcement process.
    The proposal would restructure the point table to reflect a 
moderate increase in the relative weight of the maximum points for 
Severity. Part 100 Table XII in this preamble shows the existing and 
proposed points for each Severity category. The proposal would reduce 
the maximum points for Severity from 20 points under the existing rule 
to 10 points. Under the proposal, points for ``No Lost Work Days'' 
would not change. The proposal would decrease penalty points assigned 
to the remaining two categories. The proposed definitions of the 
remaining Severity categories would not change. The proposed rule would 
result in no change in the maximum points for this Gravity criterion as 
a percentage of total maximum points, remaining at 10 percent. As shown 
in Table 2 of this preamble, MSHA's evaluation of the impact of the 
proposed changes, based on baseline violation data, indicates that the 
relative weight of the Severity penalty points would increase from 12.2 
percent of total penalty points under the existing rule to 17.0 percent 
under the proposal, appropriately reflecting the impact of the Severity 
factor on the safety and health of miners.

[[Page 44504]]



                                      Part 100 Table XII--Gravity: Severity
----------------------------------------------------------------------------------------------------------------
                       Existing rule                                            Proposed rule
----------------------------------------------------------------------------------------------------------------
                                            Penalty points   Severity of injury or illness If    Penalty points
  Severity of injury or illness if the     (out of maximum    the event has occurred or were    (out of maximum
   event has occurred or were to occur       208 points)                 to occur                 100 points)
----------------------------------------------------------------------------------------------------------------
No lost work days.......................                  0  No lost work days...............                  0
(All occupational injuries and illnesses                     (All occupational injuries and
 as defined in 30 CFR Part 50 except                          illnesses as defined in 30 CFR
 those listed below.).                                        Part 50 except those listed
                                                              below.).
Lost workdays or restricted duty........                  5  Lost work days or restricted                      5
(Any injury or illness which would cause                      duty.
 the injured or ill person to lose one                       (Any injury or illness which
 full day of work or more after the day                       would cause the injured or ill
 of the injury or illness, or which                           person to lose one full day of
 would cause one full day or more of                          work or more after the day of
 restricted duty.).                                           the injury or illness, or which
                                                              would cause one full day or
                                                              more of restricted duty.).
Permanently disabling...................                 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...................................                 20  Fatal...........................                 10
(Any work-related injury or illness                          (Any work-related injury or
 resulting in death, or which has a                           illness resulting in death, or
 reasonable potential to cause death.).                       which has a reasonable
                                                              potential to cause death.).
----------------------------------------------------------------------------------------------------------------

    MSHA is particularly interested in comments that address 
alternatives to improve consistency and objectivity in the application 
of the Severity factor of the Gravity criterion. Commenters are 
requested to be specific in their comments and submit detailed 
rationale and supporting documentation for any suggested alternatives.
    Persons Affected. The proposed rule would simplify this Gravity 
factor to improve objectivity and consistency in the enforcement 
process. Part 100 Table XIII shows the existing and proposed penalty 
points for the number of persons affected. The existing Gravity factor 
related to persons affected is currently comprised of 11 categories 
ranging from zero persons potentially affected to 10 or more. The 
proposal would reduce the 11 categories into two: no persons are 
affected and one or more persons are affected. This proposed change 
would eliminate the need for MSHA inspectors to estimate how many 
persons potentially would be affected if the event were to occur, 
thereby reducing contests related to the inspector's estimates. The 
proposal would revise the point table to reflect the reduction in the 
number of categories. Consistent with the existing rule, if no persons 
are affected, no points would be assigned. If persons are affected or 
potentially affected, one point would be assigned regardless of the 
number of persons.
    This proposed change would decrease the maximum points for this 
criterion as a percentage of total maximum points, from 9 percent under 
the existing rule to 1 percent under the proposed rule. As shown in 
Table 2 of this preamble, MSHA's evaluation of the impact of the 
proposed changes, based on baseline violation data, indicates that the 
relative weight of Persons Affected penalty points would remain 
unchanged from the existing rule, at 3 percent of total penalty points.

                           Part 100 Table XIII--Gravity: Persons Potentially Affected
----------------------------------------------------------------------------------------------------------------
                         Existing rule                                            Proposed rule
----------------------------------------------------------------------------------------------------------------
                                               Penalty points    Persons potentially affected    Penalty points
 Number of persons potentially affected if    (out of maximum    if the event has occurred or   (out of maximum
  the event has occurred or were to occur       208 points)             were to occur             100 points)
----------------------------------------------------------------------------------------------------------------
0..........................................                  0  No...........................                  0
                                                                (No persons are affected by
                                                                 the condition or practice
                                                                 cited.).
1..........................................                  1
2..........................................                  2
3..........................................                  4
4..........................................                  6  Yes..........................
5..........................................                  8  (One or more persons are                       1
                                                                 affected by the condition or
                                                                 practice cited.).
6..........................................                 10
7..........................................                 12
8..........................................                 14
9..........................................                 16
10 or more.................................                 18
----------------------------------------------------------------------------------------------------------------

    MSHA is interested in comments that address alternatives to the 
proposed rule that would improve objectivity and consistency in the 
application of the Persons Affected factor of the Gravity criterion. 
Commenters are requested to be specific in their comments and submit 
detailed rationale and supporting documentation for any comment or 
suggested alternative.

G. Sec.  100.3(f) Demonstrated Good Faith of the Operator in Abating 
the Violation

    The proposal, like existing Sec.  100.3(f), would provide for a 10 
percent

[[Page 44505]]

reduction in the penalty amount of a regular assessment where the 
operator abates the violation within the time set by the inspector. 
Under the proposal, operators could save up to $8 million (based on 
Table 12 in this preamble) in penalty reductions for prompt abatement 
of violations within the time set by the inspector.
    In an effort to provide for increased operator focus on prevention 
of safety and health hazards, MSHA is considering an alternative that 
would recognize both prompt operator abatement of safety and health 
hazards as well as prompt payment of proposed penalties. Consistent 
with the statute, and with the prior civil penalty regulation, this 
alternative would provide an additional 20 percent Good Faith reduction 
in proposed penalties when neither the penalty nor the violation is 
contested and the penalty is paid before it becomes a final order of 
the Commission. Under this alternative, operators that promptly abate 
safety and health hazards and promptly pay the penalties associated 
with the violations could be eligible for up to a 30 percent overall 
Good-Faith reduction in the amount of the penalties. MSHA would provide 
these incentives to encourage operators to allocate more resources for 
the prevention of safety and health hazards.
    MSHA is interested in comments that address this alternative, 
including other alternatives that would encourage operators to resolve 
enforcement issues quickly and increase resources allocated to 
improving the safety and health of miners. Commenters are requested to 
be specific in their comments and submit detailed rationale and 
supporting documentation for any suggested alternatives.

H. Sec.  100.3(g) Penalty Conversion Table

    As described in the preceding sections for each of the proposed 
criteria, MSHA proposes to revise the penalty point tables for each 
criterion. The proposed penalty conversion table would retain the 
existing minimum penalty of $112 and the maximum penalty of $70,000 for 
non-flagrant violations. The proposal would reduce the maximum number 
of penalty points from 208 to 100.
    The penalty conversion table in existing Sec.  100.3(g) converts 
the total penalty points associated with a citation or order into 
penalties starting at $112 when the point total is 60 or fewer to 
$70,000 when the point total is 144 or more. The proposal would revise 
the penalty conversion table to convert total points from ``31 or 
fewer'' to ``73 or more'' into penalties from $112 to $70,000, 
respectively.
    Except for the points assigned to the minimum and maximum penalty, 
the proposed penalty conversion table combines two methods of 
converting points to dollars. The lower section of the proposed table 
(32 to 62 points) reflects an exponential curve and the upper section 
(>62 to >73 points) is linear. The proposed table starts at $112 when 
the number of points associated with a citation or order is 31 or 
fewer. Each additional point from 32 up to 62 would increase the 
penalty dollar value by an average of 17 percent, or a range of 5 to 25 
percent. The proposed penalty dollar value assigned for 62 points is 
$15,000. Above 62 points the proposed penalty dollar value would 
increase by $5,000 for each penalty point to a maximum of $70,000 at 73 
or more points. MSHA's evaluation of the impact of the proposed changes 
to criteria categories and the penalty points, based on baseline 
violation data, indicates that estimated aggregate monetary penalties 
under the proposed rule would remain basically the same as under the 
existing rule.
    Part 100 Table XIV below shows the existing and the proposed 
penalty conversion tables.

                                  Part 100 Table XIV--Penalty Conversion Table
----------------------------------------------------------------------------------------------------------------
                                             Existing  penalty                                 Proposed  penalty
              Existing points                       ($)                Proposed points                ($)
----------------------------------------------------------------------------------------------------------------
60 or fewer...............................                 112  31 or fewer.................                 112
61........................................                 121  32..........................                 118
62........................................                 131  33..........................                 124
63........................................                 142  34..........................                 150
64........................................                 154
65........................................                 167  35..........................                 175
66........................................                 181
67........................................                 196  36..........................                 200
68........................................                 212
69........................................                 230  37..........................                 250
70........................................                 249
71........................................                 270
72........................................                 293  38..........................                 300
73........................................                 317
74........................................                 343  39..........................                 350
75........................................                 372
76........................................                 403  40..........................                 400
77........................................                 436  41..........................                 450
78........................................                 473
79........................................                 512  42..........................                 500
80........................................                 555
81........................................                 601  43..........................                 600
82........................................                 651
83........................................                 705  44..........................                 700
84........................................                 764
85........................................                 828  45..........................                 800
86........................................                 897
87........................................                 971  46..........................               1,000
88........................................               1,052
89........................................               1,140  47..........................               1,200
90........................................               1,235
91........................................               1,337  48..........................               1,400

[[Page 44506]]

 
92........................................               1,449
93........................................               1,569  49..........................               1,600
94........................................               1,700
95........................................               1,842  50..........................               1,800
96........................................               1,995  51..........................               2,000
97........................................               2,161
98........................................               2,341  52..........................               2,500
99........................................               2,536
100.......................................               2,748
101.......................................               2,976  53..........................               3,000
102.......................................               3,224
103.......................................               3,493
104.......................................               3,784  54..........................               3,500
105.......................................               4,099
106.......................................               4,440
107.......................................               4,810  55..........................               4,000
108.......................................               5,211
109.......................................               5,645  56..........................               5,000
110.......................................               6,115
111.......................................               6,624
112.......................................               7,176  57..........................               6,000
113.......................................               7,774  58..........................               7,000
114.......................................               8,421
115.......................................               9,122  59..........................               8,000
116.......................................               9,882  60..........................               9,000
117.......................................              10,705
118.......................................              11,597  61..........................              10,000
119.......................................              12,563
120.......................................              13,609  62..........................              15,000
121.......................................              14,743
122.......................................              15,971
123.......................................              17,301
124.......................................              18,742  63..........................              20,000
125.......................................              20,302
126.......................................              21,993
127.......................................              23,825  64..........................              25,000
128.......................................              25,810
129.......................................              27,959  65..........................              30,000
130.......................................              30,288
131.......................................              32,810  66..........................              35,000
132.......................................              35,543
133.......................................              38,503  67..........................              40,000
134.......................................              41,574
135.......................................              44,645  68..........................              45,000
136.......................................              47,716  69..........................              50,000
137.......................................              50,787
138.......................................              53,858  70..........................              55,000
139.......................................              56,929
140.......................................              60,000  71..........................              60,000
141.......................................              63,071
142.......................................              66,142  72..........................              65,000
143.......................................              69,213
144 or more...............................              70,000  73 or more..................              70,000
----------------------------------------------------------------------------------------------------------------

I. Sec.  100.3(h) The Effect of the Penalty on the Operator's Ability 
To Continue in Business

    Except for a non-substantive change, proposed Sec.  100.3(h), 
related to the effect of the penalty on the operator's ability to 
continue in business, would not change. Under the existing rule, MSHA 
presumes that the operator's ability to continue in business would not 
be affected by the assessment of a civil penalty. Under the existing 
rule, the operator may submit information to the District Manager 
concerning the financial status of the business.
    The proposal would require that operators notify and submit 
financial information to the Office of Assessments, Accountability, 
Special Enforcement and Investigations (OAASEI), rather than the 
District Manager, that civil penalties would affect their ability to 
continue in business. This proposal would be a non-substantive change 
to align the proposal with MSHA's procedures for processing financial 
hardship claims. Under existing procedures, MSHA's OAASEI reviews the 
financial documents operators submit. This proposed change would 
simplify and expedite that process.

J. Sec.  100.4 Unwarrantable Failure and Immediate Notification

    The Mine Improvement and New Emergency Response Act (MINER Act) 
established minimum penalties for citations and orders issued under

[[Page 44507]]

Sec.  104(d) of the Mine Act, that resulted from an operator's 
unwarrantable failure to comply with mandatory safety and health 
standards. MSHA believes that operators and independent contractors who 
receive citations and orders designated as unwarrantable failures do 
not demonstrate appropriate safety and health management practices that 
provide for optimum safety and health conditions for miners.
    MSHA is proposing to increase the minimum penalties for 
unwarrantable failures by 50 percent to provide greater deterrence for 
operators who allow these types of violations to occur. The proposed 
rule would hold operators accountable for their actions as well as 
encourage more diligent compliance. Under the proposal, the minimum 
penalty for any citation or order issued under Sec.  104(d)(1) of the 
Mine Act would be $3,000, and the minimum penalty for orders under 
Sec.  104(d)(2) would be $6,000.
    MSHA is interested in comments that address this proposed change, 
including the deterrent effect on safety and health hazards. MSHA is 
also interested in alternatives that would improve safety and health 
conditions for miners. Commenters are requested to be specific in their 
comments and submit detailed rationale and supporting documentation for 
any suggested alternative.

IV. Proposed Alternatives To Change the Scope, Purpose, and 
Applicability of This Part

    Existing Sec. Sec.  100.1 and 100.2 limit the scope and 
applicability of 30 CFR part 100 to proposed civil penalties only. To 
enhance consistency and predictability in the assessment of civil 
penalties, MSHA is considering two alternatives that would broaden the 
scope and applicability of part 100 to include both proposed and 
assessed penalties. MSHA solicits comments on these alternatives, as 
well as on whether and why MSHA should retain the existing language.

A. Regulatory Background and Commission Precedent

    The Mine Act requires that both the Secretary's penalty proposals 
and the Commission's penalty assessments reflect the same six statutory 
penalty criteria. The criteria are general in nature; each criterion 
requires further interpretation or elaboration before it can be applied 
to the facts of a particular case. The statute does not detail how the 
six statutory criteria should be balanced when determining an 
appropriate civil penalty. Both the exercise of proposing and the 
exercise of assessing an appropriate civil penalty, therefore, involve 
interpreting the statutory penalty criteria and determining a method 
for balancing each criterion's relative weight. Under the existing rule 
and legal precedent, MSHA and the Commission take different approaches 
to these tasks.
1. MSHA's Approach to Proposing Civil Penalties
    MSHA's regular assessment penalty formula interprets the six 
statutory civil penalty criteria and establishes a policy for balancing 
the criteria and arriving at a proposed penalty amount. Under existing 
and proposed Sec.  100.3, MSHA interprets the six statutory penalty 
criteria to give each criterion more specificity.
    Operator History: The first statutory criterion instructs that a 
penalty should reflect ``the operator's history of previous 
violations.'' Both existing and proposed Sec.  100.3(c) interpret this 
criterion by (1) establishing the relevant time period; (2) 
distinguishing between the total number of violations and the number of 
repeat violations of the same provision; and (3) establishing that only 
violations that have become final orders of the Commission will be used 
to determine an operator's history.
    Operator Size: The second statutory criterion requires 
consideration of ``the appropriateness of such penalty to the size of 
the business of the operator charged,'' but does not provide any 
details regarding how ``size'' should be calculated or compared. Both 
existing and proposed Sec.  100.3(b) interpret this criterion by 
specifying that: (1) ``Size'' refers both to the size of the mine cited 
and to the size of the mine's controlling entity; (2) ``size'' is 
measured in terms of hours worked in the case of metal and nonmetal 
mines and by production in the case of coal mines; and (3) in the case 
of independent contractors, ``size'' is measured in terms of hours 
worked at all mines.
    Negligence: The third statutory criterion states that a penalty 
should reflect ``whether the operator was negligent.'' Both existing 
and proposed Sec.  100.3(d) interpret this criterion by defining the 
term ``negligence'' as ``conduct, either by commission or omission, 
which falls below a standard of care established under the Mine Act to 
protect miners against the risk of harm.'' Both existing and proposed 
Sec.  100.3(d) further specify that ``[u]nder the Mine Act, an operator 
is held to a high standard of care.'' Finally, both existing and 
proposed Sec.  100.3(d) create and define categories of negligence and 
assign penalty points based on the degree to which the operator failed 
to exercise a high standard of care.
    Effect on Business: The fourth statutory criterion states that a 
penalty should reflect ``the effect on the operator's ability to 
continue in business.'' Both existing and proposed Sec.  100.3(h) 
establish a presumption that the operator's ability to continue in 
business will not be affected by the assessment of a civil penalty. 
Both existing and proposed Sec.  100.3(h) also provide for the operator 
to submit financial information to MSHA and for MSHA to reduce the 
penalty as appropriate.
    Gravity: The fifth statutory criterion states that a penalty should 
reflect ``the gravity of the violation.'' Both existing and proposed 
Sec.  100.3(e) define gravity as an evaluation of the seriousness of 
the violation and specify that gravity is determined by three factors: 
Likelihood, severity, and the number of persons potentially affected. 
Section 100.3(e) defines likelihood as the likelihood of the occurrence 
of the event against which a standard is directed and severity as the 
severity of the illness or injury if the event has occurred or were to 
occur. Proposed Sec.  100.3 would retain the three existing gravity 
factors, but would reduce the number of possible categories within each 
factor, and define each category.
    Operator's Good Faith: Finally, the sixth statutory criterion 
states that a penalty should reflect ``the demonstrated good faith of 
the operator charged in attempting to achieve rapid compliance after 
notification of a violation.'' Existing Sec.  100.3(f) defines good 
faith as abatement of the violation within the time set by the 
inspector and provides for a 10 percent reduction in the penalty when 
the mine operator meets the inspector's deadline. In this proposed 
rule, MSHA is considering redefining good faith to include both prompt 
abatement of safety and health hazards and prompt payment of proposed 
penalties.
    In addition to providing a substantive interpretation of each 
statutory criterion, Sec.  100.3 also establishes a formula for 
converting MSHA's factual allegations under the six criteria into a 
dollar amount. Mine operators accumulate penalty points under each 
criterion according to the tables throughout Sec.  100.3. Through the 
penalty point tables, contained in each subsection of Sec.  100.3, the 
Secretary adjusts the relative importance of the six statutory penalty 
criteria.
    The sum of penalty points is then converted into a dollar amount 
using the penalty conversion table in Sec.  100.3(g). The conversion 
table at Sec.  100.3(g) sets penalties at the level the Secretary 
considers necessary to protect

[[Page 44508]]

the safety and health of miners, consistent with the statutory criteria 
and penalty limits set by Congress. In 2007, the Secretary's revision 
to part 100 was explicitly intended to result in an across-the-board 
increase in penalties to increase the incentives for mine operators to 
prevent and correct violations. Criteria and Procedures for Proposed 
Assessment of Civil Penalties, March 22, 2007 (72 FR 13592). Under the 
provisions in this proposed rule, the total amount of penalties 
assessed by MSHA would remain generally the same, but the emphasis on 
certain criteria would be adjusted.
    When MSHA proposes civil penalties, it provides the operator with 
an exhibit that details MSHA's summary of facts supporting the proposed 
penalty. Both the operator and, in the case of a penalty contest, the 
Commission have the opportunity to see how MSHA applied part 100's 
interpretations and formula to the facts of a particular citation or 
order. The penalty summary lists the number of penalty points assessed 
under each statutory penalty criterion and the total resulting penalty 
amount.
2. The Commission's Approach to Assessing Civil Penalties
    Historically, the Secretary (through MSHA), has affirmatively 
limited the scope, purpose, and applicability of part 100's penalty 
formula by explicitly stating that the Commission is not expected to 
consider the formula when assessing civil penalties. See 30 CFR 100.1 
and 100.2 (limiting scope and applicability of part 100 to MSHA's 
proposed penalties). In the preamble to the 1982 Final Rule, MSHA 
stated:

    When a proposed penalty is contested, neither the formula nor 
any other aspect of these regulations applies. If the proposed 
penalty is contested, the Mine Safety and Health Review Commission 
exercises independent review, and applies the six statutory criteria 
without consideration of these regulations.

Criteria and Procedures for Proposed Assessment of Civil Penalties (May 
21, 1982, 47 FR 22286-87)
    The stated practice of the Commission, therefore, has been to 
assess penalties de novo according to the six statutory criteria. See, 
e.g., Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). The 
Commission has relied, in part, on the Secretary's regulatory 
limitations on the reach of part 100 to hold that it possesses de novo 
authority. See Sellersburg Stone Co., 5 FMSHRC 287, 291 (1983), aff'd 
Sellersburg Stone Co. v. Federal Mine Safety & Health Rev. Comm'n, 736 
F.2d 1147 (7th Cir. 1984).
    In contrast to part 100, the Commission's case law does not 
interpret or define the statutory penalty criteria. To guide the de 
novo exercise of the authority of Commission administrative law judges 
(ALJs), the Commission has instead established basic procedures for 
Commission ALJs to follow when assessing civil penalties. The 
Commission's Procedural Rule 30 instructs Commission ALJs to issue a 
written opinion that makes findings of fact and conclusions of law with 
regard to each of the statutory criteria. 29 CFR 2700.30. Commission 
case law also requires that ALJs provide a ``sufficient explanation of 
the bases underlying the penalties assessed by the Commission'' for 
penalties that ``substantially diverge from those originally 
proposed.'' Spartan Mining Co., 30 FMSHRC at 723 (quoting Sellersburg, 
5 FMSHRC at 293).
    The Commission's adequate explanation requirement is purely 
procedural; it does not purport to establish any deference toward the 
Secretary's proposed penalties. Thus, the Commission has unequivocally 
stated in its rules and decisions that its ALJs are bound by neither 
the Secretary's penalty regulations nor the Secretary's proposed 
penalty. 30 CFR 2700.30; Mize Granite Quarries, 34 FMSHRC 1760, 1763 
(Aug. 7, 2012). The Commission has held that its ALJs need not even 
give a presumption of validity to the Secretary's proposed assessments. 
Mining & Property Specialists, 33 FMSHRC 2961, 2963 (Dec. 6, 2011). 
Finally, the Commission has held that an ALJ who sustains all of the 
Secretary's factual allegations--or even finds greater gravity or 
negligence than that alleged--is free to assess lower penalties than 
those proposed by the Secretary, so long as the ALJ provides an 
adequate explanation for the penalty assessed. Cantera Green, 22 FMSHRC 
616, 622 (May 2000).
3. Shortcomings of the Existing Approach to Part 100's Scope and 
Applicability
    MSHA is concerned that the existing approach to part 100's scope 
and applicability--under which MSHA applies part 100's substantive 
penalty regulations when proposing a penalty, and the Commission 
assesses penalties de novo without reference to MSHA's interpretations 
or policy choices--has several shortcomings that are detrimental to the 
effectiveness of the Mine Act's civil penalty scheme.
    First, the existing approach fails to provide sufficient 
predictability and consistency. Under the existing approach, the 
Secretary can sustain his burden to prove the violation and all 
penalty-related facts, and the Commission may nonetheless assess a 
civil penalty that differs from that proposed by the Secretary. Indeed, 
according to the penalty contest data analyzed by MSHA, the Commission 
takes varied approaches when the Secretary sustains his burden of 
proof. In cases decided from 2008 through 2013 in which MSHA proposed a 
regular formula penalty under the existing penalty regulations, and the 
Commission affirmed the violation with no modifications, the Commission 
has assessed the penalty proposed by the Secretary in 60 percent of 
cases; a lower penalty in 33 percent of cases; and a higher penalty in 
7 percent of cases. See Table 5 below.

      Table 5--Frequency of Penalty Divergence for Decisions in Which Commission Affirmed Violation With No
                                       Modifications to Citation or Order
----------------------------------------------------------------------------------------------------------------
                                                     Number of
                                                   citations and    Commission      Commission      Commission
                  Decision CY*                        orders       assessed same     assessed     assessed lower
                                                    decided--no       penalty     higher penalty      penalty
                                                   modifications     (Percent)       (Percent)       (Percent)
----------------------------------------------------------------------------------------------------------------
2008............................................              14              71               0              29
2009............................................             116              62               9              29
2010............................................              56              38               7              55
2011............................................             507              79               5              16
2012............................................             145              43              21              36
2013............................................             414              44               5              51
                                                 ---------------------------------------------------------------

[[Page 44509]]

 
    Totals......................................           1,252              60               7              33
----------------------------------------------------------------------------------------------------------------
* Decision results recorded in MSHA systems as of 4/1/2014.

    The Commission is even more likely to diverge from the penalty 
indicated by part 100's formula when a judge modifies the citation or 
order. In such cases, the Commission assessed the penalty that would 
have been indicated by applying MSHA's penalty regulations to the 
judge's factual findings in only 22 percent of the cases decided. See 
Table 6 below.

 Table 6--Frequency of Penalty Divergence From MSHA's Regular Penalty Formula for Decisions in Which Commission
                              Affirmed Violation but Modified the Citation or Order
----------------------------------------------------------------------------------------------------------------
                                                     Number of
                                                    violations      Commission      Commission      Commission
                                                   affirmed with   assessed same     assessed     assessed lower
                  Decision CY*                     modification       penalty     higher penalty      penalty
                                                  to citation or     (Percent)       (Percent)       (Percent)
                                                       order
----------------------------------------------------------------------------------------------------------------
2008............................................               3               0               0             100
2009............................................              14               7              50              43
2010............................................              19              47              16              37
2011............................................             101              22              37              42
2012............................................              66              18              32              50
2013............................................              91              24              57              19
                                                 ---------------------------------------------------------------
    Totals......................................             294              22              41              37
----------------------------------------------------------------------------------------------------------------
* Decision results recorded in MSHA systems as of 4/1/2014.

Such inconsistencies undermine MSHA's efforts to achieve evenhanded and 
predictable treatment among violators by promulgating a civil penalty 
policy that gives fair notice of the consequences of infractions.

    Second, MSHA is concerned that mine operators hold a perception 
that a lower penalty can be obtained by bringing a penalty contest 
before the Commission because the Commission is not required to follow 
MSHA's penalty regulations. Indeed, since MSHA began proposing civil 
penalties under the existing rule, in cases where the Commission has 
affirmed the Secretary's citation or order and found that the Secretary 
met his burden to prove all penalty-related facts, the Commission has 
assessed total civil penalties that are $579,345, or 15 percent, less 
than those MSHA originally proposed:

 Table 7--Comparison of Total Civil Penalties Proposed By MSHA and Total Civil Penalties Assessed By Commission
         in Cases Where Commission Affirmed Citation or Order With No Modifications to Citation or Order
----------------------------------------------------------------------------------------------------------------
                                          Number of
                                        citations and                          Commission's
                                       orders  decided    MSHA's proposed        penalty       Percent change in
            Decision CY*                   with  no       penalties under      assessments         penalties
                                      modifications  to    existing rule          after            (Percent)
                                      citation or order                        adjudication
----------------------------------------------------------------------------------------------------------------
2008................................                 14            $17,879            $16,654                 -7
2009................................                116            142,477            122,803                -14
2010................................                 56            469,084            391,058                -17
2011................................                507          1,554,639          1,331,850                -14
2012................................                145            900,311            769,975                -14
2013................................                414            701,796            574,501                -18
                                     ---------------------------------------------------------------------------
    Totals..........................              1,252          3,786,186          3,206,841                -15
----------------------------------------------------------------------------------------------------------------
* Decision results recorded in MSHA systems as of 4/1/2014.

    MSHA is concerned that the perception that a lower penalty can be 
achieved at the Commission--even when the Secretary sustains his burden 
of proof--is exacerbating the number of contested cases under the Mine 
Act by

[[Page 44510]]

creating an extra and unnecessary incentive for mine operators to 
contest MSHA's proposed penalties. An excessive number of penalty 
contests, in turn, hinder efficient and effective enforcement of the 
Mine Act.
    Third, MSHA is concerned that the integrity of penalty decisions is 
compromised by the lack of substantive rules to guide the Commission's 
penalty analysis. Commission ALJs identify and discuss the six 
statutory penalty criteria before arriving at a penalty, but the 
Commission's precedent, unlike part 100, provides ALJs with no 
consistent method to interpret each criterion or to translate that 
discussion into a penalty amount. Because Congress did not give the 
Commission the authority to make law or policy, but rather gave the 
Commission limited authority to issue procedural rules, see 30 U.S.C. 
823(d)(2), the Commission's lack of substantive guidance to its ALJs on 
the meaning of the six statutory penalty criteria cannot be remedied 
through Commission rulemaking or adjudication.
    Finally, MSHA is concerned that the existing approach undermines 
the Secretary's ability to establish a penalty policy that achieves the 
deterrent purposes of civil penalties under the Mine Act. Under the 
Mine Act's split-enforcement model, the Secretary has exclusive 
policymaking authority, and the Commission is ``the equivalent of a 
court.'' See, e.g., Jeroski v. Sec'y of Labor, 697 F.3d 651, 653 (7th 
Cir. 2012). If the Secretary decides that an across-the-board increase 
or decrease in civil penalties is necessary to achieve the purposes of 
the Mine Act, the Commission's overall assessments should also reflect 
that policy choice, so long as the Secretary sustains his burden of 
proof regarding the facts of each violation and the six penalty 
criteria.

B. Proposed Alternatives to the Existing Approach to Sec. Sec.  100.1 
and 100.2

    MSHA is considering two alternative proposals to bring greater 
consistency and predictability to the assessment of civil penalties 
than achieved by the existing approach to Sec. Sec.  100.1 and 100.2. 
The third alternative would be to leave these sections unchanged.
1. Modify the Scope and Applicability of Part 100 To Make Sec.  100.3 a 
Legislative Rule Governing Both the Proposal and the Assessment of 
Civil Penalties
    MSHA's first proposed alternative is to modify the scope and 
applicability of part 100 so that Sec.  100.3 is a legislative rule 
that governs both MSHA's proposal and the Commission's assessment of 
civil penalties. This alternative would require the Commission to apply 
the penalty formula when assessing civil penalties according to the six 
statutory criteria.
    Under the first alternative, Sec. Sec.  100.1 and 100.2 would be 
revised to read as follows:

Sec.  100.1 Scope and Purpose

    This part provides the criteria and procedures for the proposal 
and assessment of civil penalties under Sec. Sec.  105 and 110 of 
the Federal Mine Safety and Health Act of 1977 (Mine Act). The 
purpose of this part is to provide a fair and equitable procedure 
for the application of the statutory criteria in determining 
penalties by both MSHA and the Commission, to maximize the 
incentives for mine operators to prevent and correct hazardous 
conditions, to encourage the consistent and predictable assessment 
of civil penalties, and to assure the prompt and efficient 
processing and collection of penalties.

Sec.  100.2 Applicability

    The criteria and procedures in this part are applicable to the 
proposal and assessment of civil penalties for violations of the 
Mine Act and the standards and regulations promulgated pursuant to 
the Mine Act, as amended.
    (a) MSHA shall review each citation and order and shall make 
proposed assessments of civil penalties.
    (b) When MSHA elects to make a regular formula assessment, the 
Federal Mine Safety and Health Review Commission shall determine 
whether MSHA has met its burden to establish the facts required to 
sustain each proposed assessment and shall assess a penalty in 
accordance with the civil penalty formula established in Sec. Sec.  
100.3 and 100.4 of this part.

    Under this alternative, as under the existing rule, MSHA would 
propose a penalty according to the part 100 formula. If the mine 
operator contests the penalty, an ALJ would make findings of fact under 
each of the six penalty criteria.
    This alternative would take a different approach than the existing 
rule to the application of the penalty formula to the facts found by 
the ALJ. Under this alternative, if the Secretary meets his burden to 
prove the penalty-related facts alleged, part 100 would require the ALJ 
to assess MSHA's proposed penalty. If the Secretary does not meet his 
burden of proof, the judge would apply part 100's penalty formula to 
the adjudicated facts to arrive at a new assessment.
    Under this proposed alternative, the Commission, when reviewing 
contested penalty assessments, would review the ALJ's factual findings 
for substantial evidence as it has under the existing rule. The 
proposed alternative would additionally require the Commission to 
review whether the ALJ correctly applied part 100 to the penalty-
related facts.
2. Modify the Scope and Applicability of Part 100 While Allowing the 
Commission To Depart From the Formula Penalty
    MSHA's second proposed alternative is similar to the first, but 
would give the Commission flexibility to depart from the part 100 
penalty formula in much the same way that district court judges were 
authorized, in limited circumstances, to depart from the Sentencing 
Guidelines before the Supreme Court's ruling in United States v. 
Booker, 543 U.S. 220 (2005). Under that framework, the district court 
first calculated the applicable Sentencing Guidelines range, and then 
considered whether to grant an upward or downward departure. See, e.g., 
Koon v. United States, 518 U.S. 81, 88-89 (1996).\1\
---------------------------------------------------------------------------

    \1\ The pre-Booker Sentencing Guidelines are more analogous to 
this rulemaking than the post-Booker Guidelines because the criminal 
constitutional protections motivating the Supreme Court's decision 
in Booker are inapplicable to the assessment of civil penalties 
under the Mine Act.
---------------------------------------------------------------------------

    The Sentencing Reform Act of 1984 contemplated that district court 
judges would grant a departure for ``an aggravating or mitigating 
circumstance of a kind, or to a degree, not adequately taken into 
consideration by the Sentencing Commission in formulating the 
guidelines.'' 18 U.S.C. 3553(b)(1). To determine whether the Sentencing 
Commission had adequately considered a circumstance, Congress 
instructed courts to consider the Sentencing Guidelines, policy 
statements, and official commentary of the Sentencing Commission. Id.
    The Commission's Manual elaborated on the concept of departures by 
explaining that departures were warranted in unusual or atypical cases 
and described such cases as ``one[s] to which a particular guideline 
linguistically applies but where conduct significantly differs from the 
norm.'' Koon, 518 U.S. at 93 (quoting 1995 U.S.S.G. ch. 1, pt. A, 
intro. comment. 4(b)).
    Under MSHA's second alternative, part 100 would employ a similar 
legal standard and allow Commission ALJs to make an upward or downward 
departure from MSHA's formula when justified. Sections 100.1 and 100.2 
would be revised to read as follows:

Sec.  100.1 Scope and Purpose

    This part provides the criteria and procedures for the proposal 
and assessment of civil penalties under Sec. Sec.  105 and 110 of 
the

[[Page 44511]]

Federal Mine Safety and Health Act of 1977 (Mine Act). The purpose 
of this part is to provide a fair and equitable procedure for the 
application of the statutory criteria in determining penalties by 
both MSHA and the Commission, to maximize the incentives for mine 
operators to prevent and correct hazardous conditions, to encourage 
the consistent and predictable assessment of civil penalties, and to 
assure the prompt and efficient processing and collection of 
penalties.

Sec.  100.2 Applicability

    The criteria and procedures in this part are applicable to the 
proposal and assessment of civil penalties for violations of the 
Mine Act and the standards and regulations promulgated pursuant to 
the Mine Act, as amended.

    MSHA would also incorporate a new Sec.  100.9 to identify the 
applicable legal standard for Commission ALJs to apply to the 
Secretary's proposed regular assessments. The new Sec.  100.9 would 
read as follows:

Sec.  100.9 Commission Review of the Secretary's Proposed Regular 
Assessments

    (a) When MSHA elects to make a regular formula assessment, the 
Federal Mine Safety and Health Review Commission shall determine 
whether MSHA has met its burden to establish the facts required to 
sustain each proposed assessment and shall assess a penalty in 
accordance with the civil penalty formula established in Sec. Sec.  
100.3 and 100.4 of this part.
    (b) Notwithstanding Sec.  100.9(a), if the administrative law 
judge (ALJ) finds that there exists an aggravating or mitigating 
circumstance of a kind, or to a degree, not adequately taken into 
consideration by the Secretary when formulating the penalty 
regulations, the ALJ may assess a penalty other than that indicated 
by the formula so long as:
    (1) The ALJ considers the penalty regulations in part 100, the 
relevant regulatory history, and MSHA's policy statements when 
determining whether the Secretary adequately considered the 
circumstance.
    (2) The ALJ provides a statement of reasons for assessing a 
civil penalty that is higher or lower than the penalty indicated by 
applying Sec. Sec.  100.3 and 100.4 to the penalty-related facts as 
found by the ALJ.
    (3) The ALJ considers the statutory penalty criteria and the 
purposes of this part identified in Sec.  100.1.
    (4) The ALJ assesses a civil penalty that is consistent with 
statutory minimum and maximum penalties.

    Under the second proposed alternative, the Secretary anticipates 
that the Commission would review the ALJ's findings of penalty-related 
facts for substantial evidence; the ALJ's application of the civil 
penalty formula in Sec. Sec.  100.3 and 100.4 to the penalty-related 
facts de novo; and the ALJ's assessment of a penalty under Sec.  
100.9(b) for abuse of discretion. MSHA's second proposed alternative 
would promote greater consistency and predictability than the existing 
rule because Commission ALJs would assess the formula penalty indicated 
by the adjudicated facts in many, if not most, cases. When departing 
from the formula penalty, Commission ALJs would not disregard the 
Secretary's penalty regulations, but rather would engage in a reasoned 
examination of them. Through the process of explaining justified 
departures from the penalty regulations in a limited number of cases, 
the Commission and its ALJs could contribute to a dialogue with the 
Secretary, mine operators, and other interested parties about ways in 
which the Secretary could continue to refine and improve the regular 
assessment rules to better serve the purposes of the Mine Act.
3. No Change to Regulatory Language
    MSHA's third proposed alternative is to make no change to the 
existing scope and applicability of part 100. Under this alternative, 
the Secretary could pursue his penalty objectives through a case-by-
case approach in penalty contests before the Commission. In litigation, 
the Secretary could ask the Commission to establish a presumption of 
validity in favor of the penalty indicated by part 100 by requiring its 
ALJs to give an explanation for why the part 100 penalty is inadequate, 
rather than an explanation for the bases of the Commission's de novo 
assessment according to the six statutory criteria. The Secretary could 
also request that the Commission provide more guidance to Commission 
ALJs about what an adequate explanation of a penalty assessment 
involves. Finally, the Secretary could ask the Commission to defer to 
the Secretary's interpretations of the penalty factors in part 100, 
even if the Commission does not weigh and balance those factors as the 
Secretary does in Sec.  100.3(g)'s penalty conversion table.

C. Request for Comments

    MSHA seeks comments addressing which of these three proposed 
alternatives would best achieve the purposes of the Mine Act's civil 
penalty scheme. In particular, MSHA seeks comments addressing whether 
part 100's civil penalty formula should govern the Commission's penalty 
assessments in addition to MSHA's penalty proposals, or whether MSHA 
should instead continue to address penalty-related issues on a case-by-
case basis through litigation rather than rulemaking. MSHA also seeks 
comments addressing whether the Commission should be able to depart 
from the penalty formula and what requirements the Commission should 
satisfy when departing from the formula.

V. Preliminary Regulatory Economic Analysis

    MSHA has not prepared a separate regulatory economic analysis for 
this rulemaking. Rather, the analysis is presented below. MSHA requests 
comments on all estimates of costs and benefits presented in this 
preamble, and on the data and assumptions the Agency used to develop 
estimates.

A. Executive Orders (E.O.) 12866 and 13563

    Executive Orders 12866 and 13563 direct 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 
safety and health effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    Under E.O. 12866, a significant regulatory action is one meeting 
any of a number of specified conditions, including the following: 
Having an annual effect on the economy of $100 million or more, 
creating a serious inconsistency or interfering with an action of 
another agency, materially altering the budgetary impact of 
entitlements or the rights of entitlement recipients, or raising novel 
legal or policy issues. MSHA has determined that the proposed rule is a 
significant regulatory action because it raises novel legal and policy 
issues.
    The analysis below indicates that the total transfer of monetary 
penalties from the mining industry to the Federal government would 
decrease by approximately $2.7 million from $82.5 million under the 
existing rule to $79.8 million under the proposed rule. For analysis 
purposes under E.O. 12866, there are no costs or quantified benefits.

B. Population at Risk

    The proposed 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 (M/NM) mines. The Agency 
maintains data on the number of mines and on mining employment by mine 
type and size. MSHA also collects data on employment at independent 
contractor

[[Page 44512]]

firms performing certain types of work at mines and on mining 
operations owned or operated by state or local governments. As shown in 
Table 8, MSHA estimates that there were 13,757 mines with employment in 
2013, including 149 mines owned or operated by state or local 
governments. These mines employed 340,000 miners, including contract 
workers and excluding office workers.

                        Table 8--Number of Mines, and Employment, Excluding Office Employees, by Employment Size of Mine, in 2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Total  employees)              coal   M/NM     i> mines     employment  at  employment  at  employment  at
                                                               mines           mines                        coal mines      M/NM mines       all mines
--------------------------------------------------------------------------------------------------------------------------------------------------------
1-19....................................................             991          10,654          11,645           6,305          48,697          55,002
20-500..................................................             688           1,368           2,056          56,727          72,697         129,424
501+....................................................              23              33              56          17,041          23,477          40,518
Contractors.............................................  ..............  ..............  ..............  ..............  ..............         114,911
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................           1,702          12,055          13,757          80,073         144,871         339,855
--------------------------------------------------------------------------------------------------------------------------------------------------------

    MSHA estimates the value of coal produced in 2013 using coal 
production, and the most recent price of coal from the U.S. Department 
of Energy (DOE), Energy Information Administration (EIA), adjusted to 
2013 dollars using the GDP price deflator from the Bureau of Economic 
Analysis. MSHA estimates the 2013 price per ton of underground coal to 
be $67.56, and the 2013 price per ton of surface coal to be $26.83. The 
estimated value of coal produced in U.S. coal mines in 2013 was $40.3 
billion, of which $23.1 billion was from underground coal and $17.2 
billion from surface coal.
    The U.S. Department of the Interior (DOI) estimated the value of 
the U.S. mining industry's M/NM output in 2013 to be approximately 
$74.2 billion. The value of production estimates are from DOI, U.S. 
Geological Survey (USGS), Mineral Commodity Summaries 2014, February 
2014, page 8.
    As shown in Table 9, the combined value of production from all U.S. 
mines in 2013 was $114.5 billion.

                    Table 9--Coal and M/NM Mine Revenue, by Employment Size of Mine, in 2013
----------------------------------------------------------------------------------------------------------------
                                                                   Coal revenue    M/NM revenue    Total revenue
               Size of mine ( employees)                  (millions of    (millions of    (millions of
                                                                     dollars)        dollars)        dollars)
----------------------------------------------------------------------------------------------------------------
1-19............................................................            $603         $16,803         $17,405
20-500..........................................................          24,921          39,431          64,352
501+............................................................          14,771          17,967          32,738
                                                                 -----------------------------------------------
    Total.......................................................          40,295          74,200         114,495
----------------------------------------------------------------------------------------------------------------

C. Benefits

    The proposed changes to part 100 would improve the efficiency of 
the Agency's enforcement efforts and minimize disputes. When issuing 
citations or orders, inspectors are required to evaluate safety and 
health conditions and make decisions about five of the six statutory 
criteria. The proposed rule would simplify the gravity and negligence 
criteria and place an increased emphasis on the more serious hazards. 
Simplifying the criteria would increase objectivity and clarity in the 
citation and order process. The proposed changes should result in fewer 
areas of disagreement and earlier resolution of enforcement issues, 
which should result in fewer contests of violations or proposed 
assessments.
    MSHA conducted a detailed analysis of the 121,089 violations for 
which MSHA proposed penalties under the regular formula during the 12-
month baseline (2013). In reviewing the existing distribution of the 
factors used to calculate the civil penalties, MSHA determined that 
there were noticeable differences in the way inspectors evaluated 
subjective factors such as the likelihood of the cited condition or 
practice causing an accident, the expected severity of any injury the 
condition or practice might cause, and the degree of negligence 
attributed to the mine operator in allowing the condition or practice 
to occur. For example, negligence attributed to the violator currently 
accounts for 30 percent of the penalty points assigned to all 
violations. The data revealed that M/NM mine inspectors assessed ``High 
Negligence'' in 10 percent of the violations while inspectors in coal 
mines assessed ``High Negligence'' in five percent of the violations. 
An even larger difference exists with the inspectors' evaluation of 
injury severity. M/NM mine inspectors evaluate the potential injury to 
be ``Fatal'' in 24 percent of the violations cited compared to 11 
percent for coal mine inspectors. MSHA's existing Form 7000-3 ``Mine 
Citation/Order Form'' is both outdated and complex. With 1,000 possible 
permutations for Gravity and Negligence, the existing form lends itself 
to subjectivity and ambiguity when evaluating these factors. The 
proposed citation/order form would reduce the number of permutations to 
54, simplifying the criteria to increase objectivity and the form's 
clarity consistent with changes in the proposed rule. The proposed 
revisions to the citation/order form would result in fewer areas of 
disagreement and earlier resolution of enforcement issues.
    The proposal is structured to encourage operators to be more 
proactive in addressing safety and health conditions at their mines. 
Under the proposal, total monetary civil penalties would remain 
generally the same as MSHA's proposed penalties under the existing 
rule. The proposal would place an increased emphasis on negligence and 
gravity to more appropriately address factors that

[[Page 44513]]

directly impact miner safety and health. The proposal would place less 
emphasis on mine size, with slightly less emphasis on controller and 
contractor sizes.
    Finally, MSHA is proposing to increase the minimum penalties for 
unwarrantable failure to provide greater deterrent for operators who 
allow these types of violations to occur.
    Although MSHA has identified potential benefits of the proposed 
rule, the Agency has no basis to quantify or monetize these potential 
benefits. Further, MSHA's analysis of the projected benefits considered 
only the effect of the proposal on MSHA's proposed penalties and did 
not consider the impact of the proposal on final orders of the 
Commission. MSHA has no basis from which to project how the proposed 
changes to Sec. Sec.  100.1 and 100.2 might affect final orders of the 
Commission.

D. Projected Impacts

    For most MSHA rules, the estimated impact associated with a 
proposed rule reflects the cost to the mining industry of achieving 
compliance with the rule. For this proposed rule, the projected impacts 
consist of slightly lower total payments by mine operators for 
penalties incurred.
    In response to the proposed changes to the regular penalty formula, 
a mine operator could invest in complying with safety and health 
standards and regulations. When MSHA promulgates a new standard, it 
generally assumes full industry compliance with the existing standard 
when estimating compliance costs. Any compliance costs incurred in 
response to adjustments in the penalty tables, therefore, are not costs 
attributable to this proposed rule. MSHA is aware that some state and 
local governments own or operate mines. MSHA does not propose penalties 
for violations at these mines; therefore, state and local governments 
are not directly impacted by this proposal.
    Any increase in proposed MSHA assessments that may occur would be a 
transfer of resources between government and private industry. It would 
not be a cost to society as a whole, although it would be a private 
cost to mine operators and independent contractors.
    MSHA evaluated the impact of the proposed changes using actual 
violation data. MSHA conducted a detailed analysis of the 121,089 
citations and orders for which MSHA proposed assessments under the 
regular formula between January 1, 2013 and December 31, 2013 
(baseline), the most current year of data available at the time of the 
analysis. A critical aspect of the analysis was the projection of 
inspector behavior under the proposed revisions. Due to the reduction 
in the number of categories for some criteria, MSHA combined some of 
the existing categories. For example, the existing categories of ``No 
Likelihood'' and ``Unlikely'' were combined in the proposed category of 
``Unlikely'' and the existing categories of ``Reasonably Likely'' and 
``Highly Likely'' were combined in the proposed category of 
``Reasonably Likely.''
    Tables 10 and 11 show the actual proposed civil penalties under the 
existing rule and projected proposed civil penalties under the proposed 
rule. The projected average proposed penalty decreases from $876 to 
$815 for penalties assessed at coal mines and increases from $459 to 
$480 for penalties assessed at M/NM mines. Total penalties for the coal 
sector would decline approximately $3.9 million and increase 
approximately $1.2 million for the M/NM sectors. The estimated penalty 
decrease of $2.7 million for all mines relative to aggregate penalty 
levels is 3 percent.
    Table 12 shows the number and dollar amounts of all regular formula 
proposed civil penalties for mine operators and independent contractors 
for the 12-month baseline period. Of the $82.5 million actual proposed 
penalties, 69 percent were for the coal mine sector and 31 percent were 
for the M/NM mine sector. Of the $79.8 million projected proposed 
penalties, 66 percent were for the coal mine sector and 34 percent were 
for the M/NM mine sector. Penalties assessed on independent contractors 
account for five percent ($4.5 million) of the $82.5 million actual 
proposed penalties and six percent ($4.6 million) of the $79.8 million 
projected proposed penalties.

                         Table 10--Actual Proposed Civil Penalties Under the Existing Regulation, Coal and Metal/Nonmetal, 2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Coal                                       Metal/Nonmetal
                                                         -----------------------------------------------------------------------------------------------
                      Penalty range                         Violations                      Percent of      Violations                      Percent of
                                                             assessed         Penalty       violations       assessed         Penalty       violations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum.................................................          18,478      $2,069,536              28          32,052      $3,589,824              56
<$500...................................................          25,495       6,243,120              42          15,452       3,715,074              30
$500 to $1,000..........................................           9,070       6,467,964              12           4,002       2,855,905               6
$1,001 to $5,000........................................           9,887      20,770,995              15           4,228       8,782,850               7
$5,001 to $10,000.......................................           1,194       8,344,876               2             430       3,044,725               1
$10,001 to $69,999......................................             590      11,517,886               1             192       3,784,885              <1
Maximum.................................................              18       1,260,000              <1               1          70,000              <1
    Total...............................................          64,732      56,674,377  ..............          56,357      25,843,263  ..............
    Average.............................................  ..............             876  ..............  ..............             459  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------


                        Table 11--Projected Proposed Civil Penalties Under the Proposed Regulation, Coal and Metal/Nonmetal, 2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Coal                                       Metal/Nonmetal
                                                         -----------------------------------------------------------------------------------------------
                      Penalty range                         Violations                      Percent of      Violations                      Percent of
                                                             assessed         Penalty       violations       assessed         Penalty       violations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum.................................................          22,898      $2,564,576              35          34,571      $3,871,952              61
<$500...................................................          23,857       5,754,830              37          14,751       3,877,979              26
$500 to $1,000..........................................           6,898       4,793,200              11           2,944       1,951,900               5
$1,001 to $5,000........................................           9,347      22,187,200              14           3,340       8,009,300               6
$5,001 to $10,000.......................................           1,455      10,445,000               2             541       3,951,000               1

[[Page 44514]]

 
$10,001 to $69,999......................................             274       6,820,000              <1             209       5,300,000              <1
Maximum.................................................               3         210,000              <1               1          70,000              <1
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................          64,732      52,774,806  ..............          56,357      27,032,131  ..............
                                                         -----------------------------------------------------------------------------------------------
    Average.............................................  ..............             815  ..............  ..............             480  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------


                     Table 12--Actual and Projected Proposed Civil Penalties Under the Existing and Proposed Regulations, All Mines
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Total actual civil penalties proposed (2013)   Total projected civil penalties proposed based
                                                         ------------------------------------------------               on 2013 violations
                      Penalty range                                                                      -----------------------------------------------
                                                            Violations        Penalty       Percent of      Violations       Projected      Percent of
                                                             assessed        proposed       violations       assessed         penalty       violations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum.................................................          50,530      $5,659,360              42          57,469      $6,436,528              47
<$500...................................................          40,947       9,958,194              34          38,608       9,632,809              32
$500 to $1,000..........................................          13,072       9,323,869              11           9,842       6,745,100               8
$1,001 to $5,000........................................          14,115      29,553,845              12          12,687      30,196,500              10
$5,001 to $10,000.......................................           1,624      11,389,601               1           1,996      14,396,000               2
$10,001 to $69,999......................................             782      15,302,771               1             483      12,120,000              <1
Maximum.................................................              19       1,330,000              <1               4         280,000              <1
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................         121,089      82,517,640  ..............         121,089      79,806,937  ..............
                                                         -----------------------------------------------------------------------------------------------
    Average.............................................  ..............             681  ..............  ..............             659  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------

VI. Feasibility

    MSHA has concluded that the proposed revisions to part 100 civil 
penalties are technologically and economically feasible. Because the 
proposed rule is not technology-forcing, MSHA concludes that the rule 
is technologically feasible. MSHA has traditionally used a revenue 
screening test--whether the yearly impacts of a regulation are less 
than one percent of revenues--to establish presumptively that the 
regulation is economically feasible for the mining community. Because 
the proposed rule is projected to decrease the proposed penalty amounts 
by approximately $2.7 million on an industry with estimated annual 
revenues of $114.5 billion, MSHA concludes that the proposed rule would 
be economically feasible for the mining industry.

VII. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act (SBREFA)

    Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA), MSHA has analyzed the compliance cost impact of the proposed 
rule on small entities. Based on that analysis, MSHA certifies that the 
proposed rule would not have a significant economic impact on a 
substantial number of small entities in terms of compliance costs. 
Therefore, the Agency is not required to develop an initial regulatory 
flexibility analysis.
    The factual basis for this certification is presented below.

A. Definition of a Small Mine

    Under the RFA, in analyzing the impact of a rule on small entities, 
MSHA must use the Small Business Administration's (SBA's) 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 established an alternative definition, and is 
required to use SBA's definition. The SBA defines a small entity in the 
mining industry as an establishment with 500 or fewer employees.
    MSHA has also examined the impact of the proposed 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. Therefore, their costs 
of complying with MSHA's rules and the impact of the Agency's rules on 
them will also tend to be different.
    This analysis complies with the requirements of the RFA for an 
analysis of the impact on small entities while continuing MSHA's 
traditional definition of ``small mines.''

B. Factual Basis for Certification

    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 further 
analysis is required.
    Under the existing rule, proposed assessments on mines with 1 to 
500 employees amount to 85 percent of total proposed assessments. Under 
the proposal, MSHA projects that total penalties would remain basically 
the

[[Page 44515]]

same as under the existing rule. As shown in Table 13 of this preamble, 
MSHA projects that proposed penalties at mines with 1 to 500 employees 
would decrease under the proposed rule by $1.6 million. Proposed 
penalties at mines with 1 to 19 employees are projected to decrease by 
$0.2 million.

  Table 13--Projected Change in Proposed Penalties Under the Proposed Rule, and the Percent of Total Projected
                                                 Penalty Amount
----------------------------------------------------------------------------------------------------------------
                                                                    Percent of
                                                     Projected         total                         Projected
       Size of mine ( employees)            impact ($       projected     2013 Revenue     impact as a
                                                     million)         penalty       ($ million)   percentage  of
                                                                      amount                          revenue
----------------------------------------------------------------------------------------------------------------
                                                   M/NM Mines
----------------------------------------------------------------------------------------------------------------
1 to 19.........................................           -$1.8              26         $16,803             N/A
1 to 500........................................             0.7              81         $56,233            <0.1
----------------------------------------------------------------------------------------------------------------
                                                   Coal Mines
----------------------------------------------------------------------------------------------------------------
1 to 19.........................................             1.6              11             603              <1
1 to 500........................................            -2.3              88          25,524             N/A
----------------------------------------------------------------------------------------------------------------
                                                    All Mines
----------------------------------------------------------------------------------------------------------------
1 to 19.........................................            -0.2              16          17,405             N/A
1 to 500........................................            -1.6              86          81,757             N/A
----------------------------------------------------------------------------------------------------------------
N/A--Not Applicable.

    MSHA projects that proposed penalties at M/NM mines with 1 to 500 
employees would increase by $0.7 million under this proposed rule, 
which rounds to zero percent of 2013 annual revenue. Proposed penalties 
at M/NM mines with 1 to 19 employees are projected to decrease by $1.8 
million. This is due in part to proposed Sec.  100.3(c)(1), which would 
assign zero violation history points when a mine has 10 or fewer 
inspection days over the preceding 15-month period.
    MSHA projects that proposed penalties at coal mines with 1 to 500 
employees would decrease by $2.3 million under this proposed rule. 
Projected proposed penalties at coal mines with 1 to 19 employees 
represent 11 percent of total projected penalties for coal mines. The 
projected impact on the 991 small coal mines with 1 to 19 employees 
would increase proposed penalties by $1.6 million or about $1,600 per 
mine. This represents <1 percent (about 0.27 percent) of 2013 annual 
revenue for these small coal mines.
    MSHA historically identifies mine size based on employment at the 
mine. Some mines with fewer than 19 employees are controlled by much 
larger entities. MSHA estimates that 252 or 24 percent of the small 
mines where MSHA proposed civil penalties for citations/orders in 2013 
were controlled by entities with more than 500 employees. The 252 small 
coal mines would see an increase of $808,000 in penalties under the 
proposed rule, or 41 percent of the $1.6 million penalties assessed on 
all small coal mines.
    MSHA issued 8,752 citations/orders to independent contractors in 
2013. MSHA estimates that independent contractors would see an increase 
in penalties from $4.5 million to $4.6 million as a result of the 
proposed rule.
    Accordingly, MSHA certifies that the proposed rule would not have a 
significant economic impact on a substantial number of small entities.

VIII. Paperwork Reduction Act of 1995

    This proposed rule contains no additional information collections 
subject to review by OMB under the Paperwork Reduction Act. MSHA Form 
7000-3 is solely used by MSHA's personnel as part of the Agency's 
enforcement activities. Any burden associated with the form is not 
subject to the Paperwork Reduction Act.

IX. Other Regulatory Considerations

A. The Unfunded Mandates Reform Act of 1995

    MSHA has reviewed the proposed rule under the Unfunded Mandates 
Reform Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that 
this proposed rule would not include any federal mandate that may 
result in increased expenditures by state, local, or tribal 
governments; nor would it increase private sector expenditures by more 
than $100 million, adjusted for inflation, in any one year or 
significantly or uniquely affect small governmental jurisdictions. 
Accordingly, the Unfunded Mandates Reform Act of 1995 requires no 
further Agency action or analysis.
    MSHA is aware that some state and local governments own or operate 
mines. MSHA does not propose penalties for violations at these mines; 
therefore, state and local governments are not directly impacted by 
this proposal.

B. Executive Order 13132: Federalism

    This proposed rule would not have ``federalism implications'' 
because it would 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 
proposed rule would have no effect on family stability or safety, 
marital commitment, parental rights and authority, or income or poverty 
of families and children. This proposed rule impacts only the mining 
industry. Accordingly, MSHA certifies that this proposed rule would not 
impact family well-being.

[[Page 44516]]

D. Executive Order 12630: Government Actions and Interference With 
Constitutionally Protected Property Rights

    The proposed rule would 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 proposed 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 proposed rule would meet 
the applicable standards provided in Sec.  3 of E.O. 12988, Civil 
Justice Reform.

F. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This proposed rule would 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 proposed rule would not have ``tribal implications'' because 
it would 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.

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 proposed rule for its energy effects because the proposed 
rule applies to the coal mining sector. Because this proposed rule 
would result in a reduction in expenditures by the coal mining 
industry, MSHA has concluded that it is not a significant energy action 
because it is not likely to have a significant adverse effect 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 proposed 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 proposed rule would not have a significant economic 
impact on a substantial number of small entities.

List of Subjects in 30 CFR Part 100

    Mine safety and health, Penalties.

    Dated: July 25, 2014.
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, MSHA is 
proposing to amend chapter I of title 30, part 100 of the Code of 
Federal Regulations as follows:

PART 100--CRITERIA AND PROCEDURES FOR ASSESSMENT OF CIVIL PENALTIES

0
1. The authority citation for part 100 continues to read as follows:

    Authority:  30 U.S.C. 815, 820, 957.

0
2. Revise the heading for part 100 to read as set forth above.
0
3. In Sec.  100.3, revise paragraphs (b), (c), (d), (e), (g), and (h) 
to read as follows:


Sec.  100.3  Determination of penalty amount; regular assessment.

* * * * *
    (b) The appropriateness of the penalty to the size of the business 
of the operator charged. The appropriateness of the penalty to the size 
of the mine operator's business is calculated by using both the size of 
the mine cited and the size of the mine's controlling entity. The size 
of coal mines and their controlling entities is measured by coal 
production. The size of metal and nonmetal mines and their controlling 
entities is measured by hours worked. The size of independent 
contractors is measured by the total hours worked at all mines. Penalty 
points for size are assigned based on Tables I through V of this 
section. As used in these tables, the term ``annual tonnage'' means 
tons of coal produced by the mine in the previous calendar year and 
``annual hours worked'' means total hours worked by all employees at 
the mine in the previous calendar year. In cases where a full year of 
data is not available, the coal produced or hours worked is prorated to 
an annual basis. This criterion accounts for a maximum of 8 penalty 
points.

                       Table I--Size of Coal Mine
------------------------------------------------------------------------
                                                                Penalty
                    Annual tonnage of mine                       points
------------------------------------------------------------------------
<50,000......................................................          1
>50,000 to 500,000...........................................          2
>500,000 to 1,000,000........................................          3
>1,000,000...................................................          4
------------------------------------------------------------------------


             Table II--Size of Controlling Entity--Coal Mine
------------------------------------------------------------------------
                                                                Penalty
                        Annual tonnage                           points
------------------------------------------------------------------------
<200,000.....................................................          1
>200,000 to 700,000..........................................          2
>700,000 to 3,000,000........................................          3
>3,000,000...................................................          4
------------------------------------------------------------------------


                 Table III--Size of Metal/Nonmetal Mine
------------------------------------------------------------------------
                                                                Penalty
                 Annual hours worked at mine                     points
------------------------------------------------------------------------
<5,000.......................................................          0
>5,000 to 200,000............................................          1
>200,000 to 1,500,000........................................          2
>1,500,000 to 3,000,000......................................          3
>3,000,000...................................................          4
------------------------------------------------------------------------


        Table IV--Size of Controlling Entity--Metal/Nonmetal Mine
------------------------------------------------------------------------
                                                                Penalty
                     Annual hours worked                         points
------------------------------------------------------------------------
<50,000......................................................          0
>50,000 to 300,000...........................................          1
>300,000 to 2,000,000........................................          2
>2,000,000 to 5,000,000......................................          3
>5,000,000...................................................          4
------------------------------------------------------------------------


                 Table V--Size of Independent Contractor
------------------------------------------------------------------------
                                                                Penalty
               Annual hours worked at all mines                  points
------------------------------------------------------------------------
<5,000.......................................................          0
>5,000 to 10,000.............................................          1
>10,000 to 30,000............................................          2
>30,000 to 70,000............................................          3
>70,000 to 200,000...........................................          4
>200,000 to 500,000..........................................          5
>500,000 to 700,000..........................................          6
>700,000 to 1,000,000........................................          7
>1,000,000...................................................          8
------------------------------------------------------------------------

    (c) History of previous violations. An operator's history of 
previous violations is based on both the total number of violations and 
the number of repeat

[[Page 44517]]

violations of the same citable provision of a standard in the 15-month 
period preceding the occurrence date of the violation being assessed. 
Only assessed violations that have become final orders of the Federal 
Mine Safety and Health Review Commission will be included in 
determining an operator's violation history.
    (1) Total number of violations. For mine operators, penalty points 
are assigned for violations per inspection day based on Table VI of 
this section. Penalty points are not assigned for mines with fewer than 
10 violations or 10 or fewer inspection days in the specified history 
period. For independent contractors, penalty points are assigned for 
the total number of violations at all mines based on Table VII of this 
section. Penalty points are not assigned for independent contractors 
with fewer than six violations in the specified history period. This 
aspect of the history criterion accounts for a maximum of 16 penalty 
points.

        Table VI--History of Previous Violations--Mine Operators
------------------------------------------------------------------------
                                                                Penalty
        Overall history: Violations per inspection day           points
------------------------------------------------------------------------
<0.3.........................................................          0
>0.3 to 0.5..................................................          2
>0.5 to 0.7..................................................          5
>0.7 to 0.9..................................................          8
>0.9 to 1.1..................................................         10
>1.1 to 1.3..................................................         11
>1.3 to 1.5..................................................         12
>1.5 to 1.7..................................................         13
>1.7 to 1.9..................................................         14
>1.9 to 2.1..................................................         15
>2.1.........................................................         16
------------------------------------------------------------------------


   Table VII--History of Previous Violations--Independent Contractors
------------------------------------------------------------------------
                                                                Penalty
        Overall history: Total violations at all mines           points
------------------------------------------------------------------------
0 to 5.......................................................          0
6 to 7.......................................................          1
8 to 9.......................................................          2
10 to 11.....................................................          3
12 to 13.....................................................          4
14 to 15.....................................................          5
16 to 17.....................................................          6
18 to 19.....................................................          7
20 to 21.....................................................          8
22 to 23.....................................................          9
24...........................................................         10
25...........................................................         11
26...........................................................         12
27...........................................................         13
28...........................................................         14
29...........................................................         15
>29..........................................................         16
------------------------------------------------------------------------

    (2) Repeat violations of the same standard. This section applies 
only after an operator has a minimum of 10 violations and more than 10 
inspection days or an independent contractor has a minimum of six 
violations in the specified history period. Repeat violation history is 
based on the number of violations of the same citable provision of a 
standard. For coal and metal and nonmetal mine operators with a minimum 
of six repeat violations, penalty points are assigned for the number of 
repeat violations per inspection day (RPID) based on Table VIII of this 
section. For independent contractors, penalty points are assigned for 
the number of repeat violations at all mines based on Table IX of this 
section. This aspect of the history criterion accounts for a maximum of 
10 penalty points.

 Table VIII--History of Previous Violations--Repeat Violations for Coal
  and Metal/Nonmetal Operators With a Minimum of Six Repeat Violations
------------------------------------------------------------------------
                                                                Penalty
        Number of repeat violations per inspection day           points
------------------------------------------------------------------------
<0.01........................................................          0
>0.01 to 0.02................................................          1
>0.02 to 0.03................................................          2
>0.03 to 0.05................................................          3
>0.05 to 0.08................................................          4
>0.08 to 0.12................................................          5
>0.12 to 0.16................................................          6
>0.16 to 0.20................................................          7
>0.2 to 0.3..................................................          8
>0.3 to 0.5..................................................          9
>0.5.........................................................         10
------------------------------------------------------------------------


     Table IX--History of Previous Violations--Repeat Violations for
                         Independent Contractors
------------------------------------------------------------------------
                                                                Penalty
           Number of repeat violations at all mines              points
------------------------------------------------------------------------
<6...........................................................          0
6............................................................          1
7............................................................          2
8............................................................          3
9............................................................          4
10...........................................................          5
11...........................................................          6
12...........................................................          7
13...........................................................          8
14...........................................................          9
>14..........................................................         10
------------------------------------------------------------------------

    (d) Negligence. Negligence is conduct, either by commission or 
omission, which falls below a standard of care established under the 
Mine Act to protect miners against the risks of harm. Under the Mine 
Act, a mine operator is required to be on the alert for conditions and 
practices in the mine that affect the safety or health of miners and to 
take steps necessary to correct or prevent hazardous conditions or 
practices. The failure of a mine operator to exercise a high standard 
of care constitutes negligence. The negligence criterion assigns 
penalty points for the degree to which the operator failed to exercise 
a high standard of care based on conduct evaluated according to Table X 
of this section. This criterion accounts for a maximum of 30 penalty 
points.

                           Table X--Negligence
------------------------------------------------------------------------
                                                                Penalty
                       Standard of care                          points
------------------------------------------------------------------------
Not Negligent: (The operator exercised diligence and could             0
 not have known of the violative condition or practice.).....
Negligent: (The operator knew or should have known of the             15
 violative condition or practice.)...........................
Reckless Disregard: (The operator displayed conduct which             30
 exhibits the absence of the slightest degree of care.)......
------------------------------------------------------------------------

    (e) Gravity. Gravity is an evaluation of the seriousness of the 
violation. Gravity is determined by the likelihood of the occurrence of 
the event against which a standard is directed; the severity of the 
illness or injury if the event has occurred or were to occur; and 
whether or not persons are potentially affected if the event has 
occurred or were to occur. The gravity criterion assigns penalty points 
based on Tables XI through XIII of this section. This criterion 
accounts for a maximum of 36 penalty points.

                      Table XI--Gravity: Likelihood
------------------------------------------------------------------------
                                                                Penalty
                   Likelihood of occurrence                      points
------------------------------------------------------------------------
Unlikely: (Condition or practice cited has little or no                0
 likelihood of causing an event that could result in an
 injury or illness.).........................................
Reasonably Likely: (Condition or practice cited is likely to          14
 cause an event that could result in an injury or illness.)..
Occurred: (Condition or practice cited has caused an event            25
 that has resulted or could have resulted in an injury or
 illness.)...................................................
------------------------------------------------------------------------


                      Table XII--Gravity: Severity
------------------------------------------------------------------------
  Severity of injury or illness if the event has occurred or    Penalty
                        were to occur                            points
------------------------------------------------------------------------
No lost work days: (All occupational injuries and illnesses            0
 as defined in 30 CFR Part 50 except those listed below.)....

[[Page 44518]]

 
Lost workdays or restricted duty: (Any injury or illness               5
 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.)......................................................
Fatal: (Any work-related injury or illness resulting in               10
 death, or which has a reasonable potential to cause death.).
------------------------------------------------------------------------


            Table XIII--Gravity: Persons Potentially Affected
------------------------------------------------------------------------
  Persons potentially affected if the event has occurred or     Penalty
                        were to occur                            points
------------------------------------------------------------------------
No: (No persons are affected by the condition or practice              0
 cited.).....................................................
Yes: (One or more persons are affected by the condition or             1
 practice cited.)............................................
------------------------------------------------------------------------

* * * * *
    (g) Penalty conversion table. The penalty conversion table is used 
to convert the sum of penalty points assigned for a violation (in 
paragraphs (b) through (f) of this section) to a civil penalty amount 
in dollars ($).

                   Table XIV--Penalty Conversion Table
------------------------------------------------------------------------
                                                                Penalty
                            Points                                ($)
------------------------------------------------------------------------
31 or fewer..................................................        112
32...........................................................        118
33...........................................................        124
34...........................................................        150
35...........................................................        175
36...........................................................        200
37...........................................................        250
38...........................................................        300
39...........................................................        350
40...........................................................        400
41...........................................................        450
42...........................................................        500
43...........................................................        600
44...........................................................        700
45...........................................................        800
46...........................................................      1,000
47...........................................................      1,200
48...........................................................      1,400
49...........................................................      1,600
50...........................................................      1,800
51...........................................................      2,000
52...........................................................      2,500
53...........................................................      3,000
54...........................................................      3,500
55...........................................................      4,000
56...........................................................      5,000
57...........................................................      6,000
58...........................................................      7,000
59...........................................................      8,000
60...........................................................      9,000
61...........................................................     10,000
62...........................................................     15,000
63...........................................................     20,000
64...........................................................     25,000
65...........................................................     30,000
66...........................................................     35,000
67...........................................................     40,000
68...........................................................     45,000
69...........................................................     50,000
70...........................................................     55,000
71...........................................................     60,000
72...........................................................     65,000
73 or more...................................................     70,000
------------------------------------------------------------------------

    (h) The effect of the penalty on the operator's ability to continue 
in business. MSHA presumes that the operator's ability to continue in 
business will not be affected by the assessment of a civil penalty. The 
operator may, however, submit financial information to MSHA's Office of 
Assessments, Accountability, Special Enforcement and Investigations at 
1100 Wilson Boulevard, 25th Floor, Arlington, Virginia 22209, 
concerning the financial status of the business. If the information 
provided by the operator indicates that the penalty will adversely 
affect the operator's ability to continue in business, the penalty may 
be reduced.
0
4. In Sec.  100.4, revise paragraphs (a) and (b) to read as follows:


Sec.  100.4  Unwarrantable failure and immediate notification.

    (a) The minimum penalty for any citation or order issued under 
Sec.  104(d)(1) of the Mine Act shall be $3,000.
    (b) The minimum penalty for any order issued under Sec.  104(d)(2) 
of the Mine Act shall be $6,000.
* * * * *
[FR Doc. 2014-17935 Filed 7-29-14; 11:15 am]
BILLING CODE 4510-43-P