Criteria and Procedures for Assessment of Civil Penalties, 44493-44518 [2014-17935]
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Vol. 79
Thursday,
No. 147
July 31, 2014
Part II
Department of Labor
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Mine Safety and Health Administration
30 CFR Part 100
Criteria and Procedures for Assessment of Civil Penalties; Proposed Rule
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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:
https://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).
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SUMMARY:
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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
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I. Availability of Information
Public Comments: MSHA posts all
comments without change, including
any personal information provided.
Access comments electronically at
https://www.msha.gov/
currentcomments.asp and on https://
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
https://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
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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;
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(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
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Criteria
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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
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15
10
25
25
25
20
45
..............
..............
..............
..............
..............
..............
..............
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Proposed rule
0% to 7% .....................................
0.5% to 5% ..................................
0% to 12% ...................................
0% to 12% ...................................
0% to 12% ...................................
0% to 10% ...................................
0% to 22% ...................................
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Penalty point
range
0
1
0
0
0
0
0
to
to
to
to
to
to
to
4 ................
4 ................
8 ................
8 ................
16 ..............
10 ..............
26 ..............
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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%.
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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
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* 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
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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
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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
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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
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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
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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 ............................................................
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0
1
2
3
4
5
6
7
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Annual tonnage
of mine
(× 1,000)
Penalty points
(out of maximum
100 points)
0 to 5 ......................................................................
0
>5 to 200 ................................................................
1
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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to be specific in their comments and
submit detailed rationale and
supporting documentation for any
suggested alternative.
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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
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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.
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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
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(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
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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 ......................................
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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,
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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
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(out of maximum
100 points)
Likelihood of occurrence
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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.
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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
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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
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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.
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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
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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 $70,000 at 73 or more
points. MSHA’s evaluation of the
impact of the proposed changes to
criteria categories and the penalty
points, based on baseline violation data,
indicates that estimated aggregate
monetary penalties under the proposed
rule would remain basically the same as
under the existing rule.
Part 100 Table XIV below shows the
existing and the proposed penalty
conversion tables.
PART 100 TABLE XIV—PENALTY CONVERSION TABLE
Existing
penalty ($)
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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 ...........................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
..........................................................................
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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
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Proposed points
31
32
33
34
Proposed
penalty ($)
or fewer ...........................................................
..........................................................................
..........................................................................
..........................................................................
112
118
124
150
35 ..........................................................................
175
36 ..........................................................................
200
37 ..........................................................................
250
38 ..........................................................................
300
39 ..........................................................................
350
40 ..........................................................................
41 ..........................................................................
400
450
42 ..........................................................................
500
43 ..........................................................................
600
44 ..........................................................................
700
45 ..........................................................................
800
46 ..........................................................................
1,000
47 ..........................................................................
1,200
48 ..........................................................................
1,400
Sfmt 4702
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PART 100 TABLE XIV—PENALTY CONVERSION TABLE—Continued
Existing
penalty ($)
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 ..........................................................
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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
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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
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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
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§ 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
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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.
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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
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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.
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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
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
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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
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Commission
assessed
lower penalty
(Percent)
29
29
55
16
36
51
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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
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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
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achieved at the Commission—even
when the Secretary sustains his burden
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of proof—is exacerbating the number of
contested cases under the Mine Act by
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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.
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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
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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
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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.
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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:
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§ 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
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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
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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
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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)
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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
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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.
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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
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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
........................
........................
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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 ....................................
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22,898
23,857
6,898
9,347
1,455
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Metal/Nonmetal
Percent of
violations
Penalty
$2,564,576
5,754,830
4,793,200
22,187,200
10,445,000
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Violations
assessed
35
37
11
14
2
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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
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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
........................
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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
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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,
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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
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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 ............................................................................................................
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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
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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
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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.
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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
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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
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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
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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
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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 ................................................
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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
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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.) ...........
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Penalty
points
0
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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
*
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Penalty
($)
Points
Penalty
points
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TABLE XIV—PENALTY CONVERSION
TABLE—Continued
Sfmt 9990
112
118
124
150
175
200
250
300
350
400
450
500
600
700
800
1,000
1,200
1,400
1,600
1,800
2,000
2,500
3,000
3,500
4,000
5,000
6,000
7,000
8,000
9,000
10,000
15,000
20,000
25,000
30,000
35,000
40,000
45,000
50,000
55,000
60,000
Points
72 ..................................................
73 or more ....................................
Penalty
($)
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
-----------------------------------------------------------------------
Mine Safety and Health Administration
-----------------------------------------------------------------------
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]]
-----------------------------------------------------------------------
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: https://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
https://www.msha.gov/currentcomments.asp and on https://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 https://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
