Criteria and Procedures for Assessment of Civil Penalties

Federal Register, Volume 79 Issue 147 (Thursday, July 31, 2014)

Federal Register Volume 79, Number 147 (Thursday, July 31, 2014)

Proposed Rules

Pages 44493-44518

From the Federal Register Online via the Government Printing Office www.gpo.gov

FR Doc No: 2014-17935

Page 44493

Vol. 79

Thursday,

No. 147

July 31, 2014

Part II

Department of Labor

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Mine Safety and Health Administration

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30 CFR Part 100

Criteria and Procedures for Assessment of Civil Penalties; Proposed Rule

Page 44494

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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 100

Docket No. MSHA-2014-0009

RIN 1219-AB72

Criteria and Procedures for Assessment of Civil Penalties

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Proposed rule.

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

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

ADDRESSES: Comments and informational materials must be identified with ``RIN 1219-AB72'' and sent to MSHA by one of the following methods:

Federal E-Rulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments for Docket Number MSHA-2014-0009.

Electronic Mail: zzMSHA-comments@dol.gov. Include ``RIN 1219-AB72'' in the subject line of the message.

Mail: MSHA, Office of Standards, Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209-

3939.

Facsimile: 202-693-9441.

Hand Delivery or Courier: MSHA, Office of Standards, Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209-3939, between 9:00 a.m. and 5:00 p.m. Monday through Friday, except Federal holidays. For hand delivery, sign in at the receptionist's desk on the 21st floor.

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

9441 (facsimile).

SUPPLEMENTARY INFORMATION:

Table of Contents

  1. Availability of Information

  2. Background

    1. Statutory Background

    2. Regulatory Background

  3. Section-by-Section Analysis

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

    2. General Discussion of Sec. 100.3

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

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

    5. Sec. 100.3(d) Negligence

    6. Sec. 100.3(e) Gravity

    7. Sec. 100.3(f) Demonstrated Good Faith of the operator in abating the violation

    8. Sec. 100.3(g) Penalty Conversion Table

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

    1. Sec. 100.4 Unwarrantable Failure and Immediate Notification

  5. Proposed Alternatives to Change the Scope, Purpose, and Applicability of this Part

    1. Regulatory Background and Commission Precedent

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

  6. Preliminary Regulatory Economic Analysis

    1. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    2. Population at Risk

    3. Benefits

    4. Projected Impacts

  7. Feasibility

  8. Regulatory Flexibility Analysis and Small Business Regulatory Enforcement Fairness Act

    1. Definition of a Small Mine

    2. Factual Basis for Certification

  9. Paperwork Reduction Act of 1995

  10. Other Regulatory Considerations

    1. The Unfunded Mandates Reform Act of 1995

    2. Executive Order 13132: Federalism

    3. The Treasury and General Government Appropriations Act of 1999: Assessment of Federal Regulations and Policies on Families

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

    5. Executive Order 12988: Civil Justice Reform

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

    7. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    8. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

  11. Executive Order 13272: Proper Consideration of Small Entities in Agency Rulemaking

  12. Availability of Information

    Public Comments: MSHA posts all comments without change, including any personal information provided. Access comments electronically at http://www.msha.gov/currentcomments.asp and on http://www.regulations.gov. Review comments in person at the Office of Standards, Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia. Sign in at the receptionist's desk on the 21st floor.

    Email Notification: MSHA maintains a list that enables subscribers to receive an email notification when the Agency publishes rulemaking documents in the Federal Register. To subscribe, go to http://www.msha.gov/subscriptions/subscribe.aspx.

  13. Background

    1. 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

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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 ``issues 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.

    2. 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.

  14. Section-by-Section Analysis

    1. 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.

    2. 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

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      Existing rule Proposed rule

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      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***

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      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.

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      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 ..................

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      * 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

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      Existing rule Proposed rule

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      Criteria Penalty points for % of total penalty Penalty points for % of total penalty

      criterion points criterion points

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      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.

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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 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.

    3. 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

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      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

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      Existing rule Proposed rule

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      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)

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      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

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      Part 100 Table II--Size of Controlling Entity--Coal Mine

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      Existing rule Proposed rule

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      Penalty points Penalty points

      Annual tonnage (x 1,000) (out of maximum Annual tonnage (x 1,000) (out of maximum

      208 points) 100 points)

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      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

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      Part 100 Table III--Size of Metal/Nonmetal Mine

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      Existing rule Proposed rule

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      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)

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      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

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      >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

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      Part 100 Table IV--Size of Controlling Entity--Metal/Nonmetal Mine

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      Existing rule Proposed rule

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      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)

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      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

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      Part 100 Table V--Size of Independent Contractor

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      Existing rule Proposed rule

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      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)

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      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

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    4. 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

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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 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

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      Points Coal mines

      M/NM mines Total

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      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

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      Total....................... 60,954 .............. 51,383 .............. 112,337

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      Table 4--Projected Distribution of Penalty Points for Violations Per Inspection Day Under the Proposed Rule

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

      Points Coal mines

      M/NM mines Total

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      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

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      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)

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

      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.

    5. 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.

    6. 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.

    7. 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.

    8. 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

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

  15. 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.

    1. 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.

  16. 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.

    1. 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 ``under 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.

    2. 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 ``ones 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.

    3. 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.

  17. 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.

    1. 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.

    2. 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

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

    3. 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.

    4. 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

      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 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 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 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 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 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 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 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

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

      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

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