In the Matter of:             ) 
                              ) 
PUBLIC HEARING ON PROPOSED    ) 
RULE CHANGES                  ) 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Pages: 1 through 88 
 
Place: Coraopolis, Pennsylvania 
 
Date:  October 19, 2006 

 U.S. DEPARTMENT OF LABOR 
 MINE SAFETY AND HEALTH ADMINISTRATION 
  
In the Matter of:             ) 
                              ) 
PUBLIC HEARING ON PROPOSED    ) 
RULE CHANGES                  ) 
 
   Thursday, 
   October 19, 2006 
 
   Allegheny/Ohio Room 
   Pittsburgh Airport Marriott 
   777 Aten Road 
   Coraopolis, Pennsylvania 
 
 
  The meeting in the above-entitled matter was 
 
convened, pursuant to Notice, at 9:00 a.m. 
 
BEFORE: PATRICIA W. SILVEY 
  Moderator 
 
  PARTICIPANTS: 
 
  Agency Panelists: 
 
  PATRICIA W. SILVEY, Director, 
  Office of Standards, Regulations,  
    and Variables, MSHA 
 
  JAY MATTOS, Acting Director, 
  Assessments 
 
  PETER MONTALI 
  Office of Metal and Nonmetal  
    Mine Safety and Health 
 
  KEITH WATSON  
  Office of Assessments 
 
  ROBERT STONE 
  Economic Analysis Division 
 
  WILLIAM CROCCO 
  Office of Coal Mine Safety and Health 
PARTICIPANTS (continued): 
 
  Agency Panelists: 
 
  JACK POWASNIK  
  Office of the Solicitor 
 
  Speakers: 
 
  RON VAN HORN 
  WES ADDINGTON 
  STANLEY GEARY 
  HANK MOORE 
  RON BOWERSOX 
  TIM BAKER 
  DENNIS O'DELL 

 P R O C E E D I N G S 
 (9:00 a.m.) 
  MS. SILVEY:  Good morning.  My name is Patricia W. Silvey.  I am the director of the Mine Safety and Health Administration's Office of Standards, Regulations, and Variances.  I will be the moderator of this public hearing today on MSHA's proposed rule concerning civil penalties. 
  The members of the panel are:  to my right, Keith Watson, who is the deputy director of the Office of Assessments and a member of the Rule-making Committee; Jay Mattos, who is the acting director of the Office of Assessments now; and the chair of the Rule-making Committee could not be with us today because of a previous commitment.  To the right of Keith, Pete Montali, who is with MSHA's Office of Metal and Nonmetal Mine Safety and Health and also a member of the committee; to my left, Jack Powasnik, who is a lawyer with the Labor Department's Solicitor's Office, and he is the attorney on the committee; to his left, Robert Stone, who is MSHA's chief economist and who works in my office; and to his left, William Crocco, who is with MSHA's Coal Mine Safety and Health Office and who is also a member of the Rule-making Committee.  And not to miss her, in the back of the room, Linda Weitershausen, who is also in the Office of Assessments, and Linda is also a member of the Rule-making Committee. 
  This is the last of six hearings on this proposed rule.  As some of you who followed this rule-making know, the first hearing was in Arlington, Virginia; the second in Birmingham, Alabama; the third in Salt Lake City; the fourth in St. Louis; and Tuesday of this week, we were in Charleston, West Virginia; and today is our final hearing. 
  The comment period for this rule closes on October 23.  Because of provisions in the Miner Act, the Mine Improvement and New Emergency Response Act of 2006, MSHA must issue regulations related to the penalty provisions by December 2006. 
  This hearing will be conducted in an informal manner.  Formal rules of evidence, as those of you who have participated in MSHA hearings know, do not apply.  Members of the panel may question witnesses, and witnesses may ask questions of the panel. 
  Scheduled speakers will make their presentations first, and then others will be allowed to speak. 
  Before I discuss the provisions of the rule, I want to give a very brief overview of the civil penalty process, beginning with a clarification of four terms that are used throughout the rule-making. 
  The first term is "citation."  The inspector issues a citation for a violation of any MSHA standard, rule, order, safeguard, or regulation, and the inspector sets a time to abate the condition. 
  The second is an "order."  The inspector issues an order under several circumstances:  When a violation is not abated within the time set by the inspector, when the inspector finds a violation caused by an unwarrantable failure to comply, or when the inspector determines that an imminent danger exists.  Any order requires withdrawal of affected miners until the violation is abated.  The order does not necessarily mean that the entire will be shut down.  It applies to the area affected by the violation. 
  Third, "significant and substantial," or as we say, "S&S."  An S&S violation is one that is reasonably likely to result in a reasonably serious injury or illness.  The inspector makes the S&S determination at the time of the issuance of the citation. 
  Finally, "unwarrantable failure," and this has been defined by case law to be "aggravated conduct constituting more than ordinary negligence...." 
  Under the Mine Act, MSHA proposes penalties, and the Federal Mine Safety and Health Review Commission, or "the Commission" assesses penalties.  A proposed penalty that is not paid or contested within 30 days of receipt becomes a final order of the Commission and is not subject to any review by any court or agency.  Penalties that are contested before the Commission are reviewed de novo. 
  We will use the term "assessment" to refer to those proposed assessments that MSHA issues, as well as assessments of the Commission. 
  The Mine Act requires MSHA and the Commission to consider six criteria in assessing penalties, and those are:  the appropriateness of the penalty to the size of the business; the operator's history; whether the operator was negligent; the gravity of the violation; the operator's good faith in abating the violation; and the effect of the penalty on the operator's ability to continue in business. 
  The first five criteria are applied in computing the penalty, and the last criterion is applied after the penalty is proposed upon request by the mine operator, and what the mine operator has to do in that instance is to submit supporting material if the operator believes that the penalty will negatively affect the ability to continue in business.  MSHA would review such information and may adjust the penalty. 
  MSHA published the proposal in the Federal Register on September 8.  We placed a copy on MSHA's Web site, and sent a copy to the Small Business Administration Office of Advocacy. 
  The proposal basically does two things.  It revises MSHA's civil penalty program to increase penalty amounts and to improve the effectiveness of MSHA's civil penalty process.  These changes are intended to induce greater mine operator compliance with the Mine Act and MSHA's safety and health standards, and to thereby improve safety and health for miners. 
  Secondly, the proposal implements three provisions of the Miner Act. 
  The proposal does not change the way inspectors issue citations.  Under the proposal, the inspectors will continue to make factual determinations with respect to safety and health violations and will issue citations and orders just as they do now. 
  Note that while both the Mine Act and the Miner Act contain provisions for criminal fines, this rule only concerns civil penalties, as the name implies.  Under the existing rule, MSHA has three types of assessments:  single, regular, and special.  I will now address the proposed changes with respect to each type. 
  I'm going to begin with the existing civil penalty assessment.  Throughout these public hearings, we have heard a lot about the civil penalty provision.  Under the existing rule, there is a $60 single penalty for non-S&S violations that are timely abated and where the operator does not have an excessive history of violations. 
  The agency proposes to delete the single penalty provision, and here I want to make a real, if I can, try to clarify for the record that by proposing to delete the single penalty provision, the agency will replace the single penalty provision with -- those single penalty, non-S&S violations that are now single penalties, processed through the single penalty, will now be processed through the regular assessment provision. 
  So, in other words, what I'm saying is they will continue to be cited, as I said.  Inspectors will continue to cite them, but instead of being processed as a single penalty, they will now be processed, all violations will be processed, through the regular formula, except for special assessments, and I'll get to that. 
  At this point, as further clarification, I would like to draw your attention to page 53055 of the proposed rule, under the "Background" portion.  MSHA stated, under the general background, "(a) General," in the second paragraph, the first sentence:  "MSHA proposes a civil penalty assessment for each violation," and I want to reiterate that.  "MSHA proposes a civil penalty assessment for each violation."  So non-S&S violations will continue to be cited, and we will have to propose a penalty.  They will not be thrown out, so to speak. 
  The second thing I want to draw your attention to there in this proposal is, on page 53066, and this is under the Section 4, "Executive Order 12866."  It's under the "regulatory analysis" portion of the proposal.  But on 53066, in the second column, number two, we state that "in the analysis --" it is in reference to the analysis, but we say "-- all 2005 regular and single penalty assessments would be issued as regular assessments under the proposal." 
  So I just want to stress that the single penalty assessments under this proposal would be issued as regular assessments.  I think I've said enough there. 
  The agency believes that, by taking this action and eliminating the single penalty and processing those non-S&S violations through the formula system, this will cause mine operators to focus their attention on preventing all hazardous conditions. 
  The second type of assessment is regular assessments.  Regular assessments are derived by assigning points for the statutory criteria and then converting total points to a dollar amount.  Regular assessments are computer generated through MSHA's management information system. 
  The proposal would make a number of changes to the process for determining penalty amounts.  The point tables would be revised so that penalties increase proportionately to increases in size, history, and negligence, and the gravity or seriousness of the violation. 
  Regular assessment changes are as follows: 
  Size.  The size criterion includes the operator size and controller size.  For coal mines, the operator size is measured by tonnage of coal produced during the previous calendar year.  For metal and nonmetal mines, the operator size is measured by hours worked at the mine during the previous calendar year, and size for independent contractors is determined by total hours worked at all mines during the previous calendar year. 
  Under the proposal, the maximum number of points would increase from 10 to 20 for operator size.  The proposal would continue to assign no points for the smallest operators, and those are coal mines with 10,000 tons of coal up to 15,000 tons, metal/nonmetal mines with 10,000 or less hours worked, and independent contractors who have worked up to 10,000 hours at all mines. 
  Please note that the preamble to the proposed rule states that, according to 2005 data, nearly half of the existing coal mines had annual tonnage of up to 15,000 tons.  That actually is not an accurate figure because it includes 463 surface facilities that do not produce coal, and if we were to exclude those facilities, we get a more accurate 
number of one-fourth of producing coal mines that had annual tonnage of up to 15,000 tons. 
  The proposal makes no changes to size points for controlling entities.  MSHA, however, solicited comments on whether greater weight should be placed on the size of the controlling entity, and I invite you to address this issue. 
  History of Violations.  The proposal includes several changes to the history criteria.  It would shorten the time period for determining history, change independent contractor history from an annualized number to the total number, add a new component for repeat violations of the same standard, and increase the maximum number of history points. 
  Under the existing rule and the proposal, only violations for which the penalty has been paid are finally adjudicated or included in determining an operator's history. 
  Under the proposal, the time period for determining history would be shortened from 24 months to 15 months.  MSHA believes that the shorter time period would more accurately reflect an operator's current state of compliance.  Both the existing rule and the proposal base history for production operators on violations per inspection day. 
  Under the existing regulation, history for independent contractors is based on the average number of violations over the past two years.  The proposed rule would change this and use the total number of violations during the previous 15 months.  Since history would no longer be based on 24 months, there is no need to annualize the number of violations. 
  In the proposal, MSHA solicited comments on this approach to determining violation history for independent contractors, and that is whether an annualized average should continue to be used or whether the total number should be used.  I invite you to address this issue today or in your written comments.  Violation history; the total number of penalty points would be increased from 20 to 25. 
  The proposal adds a new component to the history criteria for repeat violations of the same standard.  Penalty points would be added for more than five repeat violations of the same standard during the preceding 15 months.  Under the proposal, repeat violations would be determined according to the manner in which the standard is cited.  As an example, a violation of Section 56.14101(a)(1) would not be considered in determining the number of previous violations of Section 56.14101(a)(2). 
  MSHA solicits comments on this approach to determining repeat violations.  Penalty points are assigned for the total number of repeated violations during the 15-month period.  MSHA also solicited comments on two additional aspects of repeat violations:  whether penalty points should be based on the total of repeat violations or on the number of repeat violations per inspection day, and whether repeat violations should include all violations or only S&S violations. 
  The agency invites you to address these issues. 
  Negligence.  The proposed rule would retain the existing five levels of negligence and would double the maximum number of penalty points that could be assigned for negligence from 25 to 50, with the increase placed entirely in the three highest levels. 
  Under the proposal, penalties would increase proportionately for operators who exhibit increasingly high levels of negligence. 
  Gravity.  The proposed rule would retain the three components of gravity -- likelihood, severity, and the number of persons potentially affected -- but would increase the maximum number of penalty points from 30 to 88. 
  Good Faith and Abating the Violation.  The existing rule adds 10 penalty points if the operator does not abate within the time set by the inspector and reduces the total penalty by 30 percent if the violation is timely abated. 
  The proposal would decrease the reduction for timely abatement to 10 percent.  Under the proposal, no penalty points would be added for violations that are not timely abated. 
  Penalty Point Conversion Table.  The dollar amounts on the existing conversion table range from $72 to the statutory maximum of $60,000.  The minimum regular assessment is $60.  The proposal provides a maximum of 208 penalty points.  The revised conversion table begins with $112. 
  Under the proposal, with a 10-percent reduction for timely abatement, the lowest penalty would be $100.  The dollar amount of the penalty increases steadily as the number of penalty points increases.  Beginning at 133 points, each additional penalty point corresponds to an increase of approximately $3,070.  The maximum penalty of $60,000 is reached at 140 points.  Although all penalties are increased, violations with the highest number of penalty points, which would generally be those that involve high negligence and gravity or greater violation history, will increase at a greater rate. 
  Special assessments are processed where the violation is of such a nature that an appropriate penalty cannot be determined using the regular formula.  The existing rule lists certain categories of violations, such as fatalities and unwarrantable failure, that must be reviewed to determine if a special assessment is appropriate. 
  The proposed rule would remove this list, but by so doing, MSHA would retain its discretion to determine which types of violations would be reviewed for special assessment without being limited to a specific list.  We've gotten a lot of comments on special assessment also. 
  MSHA anticipates that the proposed regular assessment provision will provide an appropriate penalty for most types of violations because the penalty amounts under the regular formula do increase.  This change will permit MSHA to focus its enforcement resources on more field enforcement activities rather than on administrative review activities. 
  The proposal would shorten the time allowed to request a health and safety conference with the district manager.  We've also gotten a lot of comment on this aspect of the proposal.  Under the existing rule, parties are allowed 10 days to make this request.  The proposal would shorten the time to five days. 
  The proposed rule also includes a requirement that requests for health and safety conferences be in writing.  MSHA is considering adding a requirement that the conference requests include a brief statement of the reason why each citation should be conferenced.  MSHA believes that this change would assure that parties requesting a conference focus on the issue to be conferenced, and it will also help expedite the conference process by providing the appropriate district manager with necessary information prior to conducting the conference.  MSHA solicits comments on this change. 
  Finally, as mentioned earlier, the proposal implements the civil penalty provisions of the Miner Act, and although these provisions are included in the proposal, they were effective on June 16, 2006.  The agency has issued a procedural instruction letter to MSHA personnel containing information on procedures for processing violations consistent with the Miner Act.  I will discuss each provision separately. 
  Unwarrantable Failure.  In accordance with the Miner Act, unwarrantable failure citations and orders will be given penalties of at least $2,000 and $4,000, respectively, and the proposed rule includes these provisions. 
  Penalties for "Flagrant" Violations.  The Miner Act established a new penalty of not more than $220,000 for "flagrant" violations, and flagrant violations are defined in the Miner Act as those involving "a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury."  As stated earlier, these violations would be processed as special assessments. 
  Failure To Notify.  The Miner Act establishes a penalty of not less than $5,000 and not more than $60,000 for failure to timely notify MSHA of a death or an injury or entrapment with a reasonable potential to cause death.  These violations would be processed as special assessments. 
  Please sign the attendance sheet in the back of the room, if you have not done so.  MSHA will post transcripts of all of the public hearings on our Web site.  Each transcript will be posted there approximately one week after completion of the hearing, and most of the transcripts, I hope, should be on the Web site right now.  The transcript will include the full text of my opening statement and the specific issues for which the agency seeks additional comment. 
  We will now begin, and please begin your presentation by clearly stating your name and organization for the reporter. 
  At this point, our first witness will be Ron Van Horn with American Energy Corporation. 
  (Pause.) 
  MR. VAN HORN:  Good morning.  My name is Ron Van Horn.  I'm the safety director of American Energy Corporation, a Murray company.  I would like to thank MSHA and this panel for the opportunity to provide comments on the proposed civil penalty rule, a rule which will have widespread effect on the industry and not in the manner that MSHA seeks. 
  American Energy Corporation is an underground coal mining operation located near Bellesville, Ohio.  We operate four continuous mining sections, and we employ approximately 411 people. 
  We take safety of our employees as our absolute, top commitment.  It is our moral and ethical responsibility to protect the health and safety of our employees. 
  The proposed rule will be very harmful to the safety efforts of responsible operators.  Civil penalties are not an incentive for safety, nor do they have any positive effect on our or any other responsible operator's safety efforts.  We strongly urge mail to modify the proposed rule and return to the prior penalty system, to the extent possible. 
  Some of the provisions of the proposed rule are statutorily based and cannot be affected by rule-making procedures.  Our comments will be more aimed at the changes in which MSHA has some discretion or otherwise statutory but subject to interpretation.  The changes as a whole are a misguided attempt to increase safety by punitive actions against the operators.  The result would be greatly increased civil penalties and an effort tripling them. 
  Our specific comments are as follows: 
  100.3(b), "Penalty to the Size of the Operator's Business."  MSHA has proposed to increase the penalty points on size from an old maximum of 10 to 20 for mines over two million tons of production.  MSHA contends that making the monetary penalty proportional will, therefore, increase compliance. 
  The view is seriously flawed and discriminatory.  Large operations are inherently safer.  This proposed change has the reverse effect of punishing size, which is generally a safety enhancer.  The series of mine disasters that led to the Miner Act were at small mines.  This is typical of the proposed rule and shows a disconnect between the reality of mining operations and MSHA bureaucracy. 
  100.3(d), "Negligence."  The old, five-tier system determining points to be assigned for negligence was effective and has been retained by MSHA but with points for the upper three tiers increased and doubled at the level of reckless disregard.  Our view is that the increase should not apply to moderate negligence, as it would be subject to wide variations of interpretations. 
  100.3(e), "Gravity."  MSHA has increased the potential from a maximum of 30 penalty points under the previous rule to 88 penalty points under the proposed rule.  Historically, the gravity portion of the citation is the most frequently contested item by our company in health and safety conferences conducted with the agency.  This is primarily due to the inspectors' determination of gravity being speculative in nature and subject to individual interpretation.  The excessive increase in penalty points is unwarranted in potentially subjected areas. 
  100.3(f), "Demonstrated Good Faith of Operator in Abating Violations."  In this misguided section, MSHA actually decreases the beneficial effect of timely abatements of violations by operators.  Previously, an operator could receive a reduction of 30 percent for timely abatement.  Now it's only 10 percent:  a disincentive rather than an incentive to timely compliance. 
  100.3(g), "Penalty Conversion Table."  This now assesses $412 for a penalty.  It is inappropriate to set such a floor for non-S&S penalties and mere paperwork violations.  This is the purpose for which a single penalty assessment was designed, but this has also been eliminated in Section 100.4 of the proposed rule.  The deletion of a single penalty; the floor of $112 will have the effect of merely increasing bureaucracy and inefficiency and will not have any real effect on safety compliance. 
  The concentration of MSHA and the operators should be on the elimination of potential S&S citations.  The elimination of the single penalty causes the initiative to be blurred.  Lumping all citations, both S&S and non-S&S, into one category actually diminishes the emphasis on S&S.  This is a further example of the lack of a practical approach of MSHA to the real issues. 
  100.4, "Unwarrantable Failure."  Much of the proposed rule in this area is designed to implement the statutory requirement of the Miner Act.  As such, there is little discretion possible.  It is difficult to gauge the effect of one proposed change, the elimination of a list of specific categories that can be a basis of special assessment.  Our view is that this has not been a problem before, so why change it?  Any change would probably lead to an increase in special assessments, which, if flagrant, can be assessed at $220,000.  This is an unacceptable combination that provides MSHA too much discretion. 
  100.6, "Procedure for Review of Citations and Orders."  The time period for requesting a safety and health conference has been reduced from 10 to five days, and there is no reason for the change.  The rule goes on to incorporate certain statutory disclosures.  MSHA predicts that, for each 10-percent increase in penalty for citations, there will be a three-percent decrease in the probability of occurrence.  This appears bogus, as compliance at responsible operations are not driven by penalty costs but by other motivations.  This is a cynical attitude by MSHA and indicates that punitive mind-set rather than safety mindedness. 
  Further, in the disclosure portion, MSHA states that the proposed rule is economically feasible for the mining industry because the anticipated expected increase in penalties will be $15.9 million, equal to .07 percent of the coal sector revenue of $22.1 billion in 2004.  This, again, shows a disconnect between the economic challenge faced, especially by the underground coal operators and their understanding of the MSHA. 
  Thank you for your time, and I will answer any questions. 
  MS. SILVEY:  Thank you.  Some of my panel members might have questions, but before any questions that I might have, I have a few comments to make because we've heard a lot of comments along the line of your comments, Mr. Van Horn. 
  I guess, first of all, I would say that our overriding purpose in issuing the proposal was to provide greater inducement, and I think I said something like that in my opening statement, for improved operator compliance and thereby improve the safety and health of miners.  As I say that, I'm going to do this again, and it probably appears somewhere else in the transcripts, maybe at three or four of the other public hearings. 
  I'm going to read the purpose of civil penalties under the Mine Act, as we included in the proposal, page 53055, and I'm going to quote:  The intended purpose of civil penalties, and I stress "civil penalties," under the Mine Act is to "convince operators to comply with the act's requirement," and that is a direct quote from the Senate report that was a part of the 1977 Mine Act.  That was the congressional intent in the Mine Act, that civil penalties serve that purpose. 
  We issued this proposal, hopefully, to try to improve that purpose.  When you stated that, to reduce the 30-percent good faith -- you all heard that one of the criteria is the good faith of the operators in timely abating the violation, and you said that, to reduce that from 30 percent to 10 percent is a disincentive to timely compliance. 
  I guess I would ask, though, and we've heard that, too, that even if we were to go forward and reduce it from the 30 percent to 10 percent, operators, as you started out saying in the beginning, it's your moral and ethical duty for safety to comply and to have a safe and healthful workplace. 
  In a way, this is kind of a rhetorical question, and it's not at all meant to put you on the spot, but, hypothetically, no matter what we did in the final rule, if the inspector came and issued a citation for a violation at your mine, would you abate the violation?  This is sort of a leading question, but would you timely abate?  What would you do?  I should have said, "What would you do?" instead of "Would you?" 
  MR. VAN HORN:  We go beyond the abatement time that the inspector gives us, and we immediately start making corrections to abate that right now.  But, technically, you have that abatement time period to get that violation abated. 
  MS. SILVEY:  That's correct, but you're telling me that generally you immediately abate. 
  MR. VAN HORN:  We immediately abate so that we can get the 30-percent reduction.  Even though you don't abate it, you know what's going to happen.  You're going to get the B order. 
  MS. SILVEY:  Okay, okay.  On the single penalty, we've heard a lot of comments on the single penalty, too, and you said that the single penalty is focused on paperwork violations, and our purpose should be to eliminate S&S violations, but I will say, and I want to stress to everybody, in proposing to delete the single penalty, our purpose was to assure a focus on all violations, to eliminate all violations, S&S and non-S&S.  And, at this point, some of my colleagues up here have jokingly called it, and, unfortunately, I don't have a better thing other than this. 
  But I think that, graphically, and you all are not going to be able to see this either, graphically, I think it is a need to do this here, and you can't see this, but you can imagine this line that's drawn on the horizontal axis on this sheet, a line drawn along there, and then this vertical line intersects on the left-hand side, about a third of the horizontal line, and where the vertical line intersects it, everybody in this room might agree with me that everything on this side of this vertical line is a non-S&S violation because we know that, and when the inspector issues a citation, there is some judgment call. 
  So we might agree that everything at this third on this side is non-S&S.  Then I drew a vertical line down to the right third of this horizontal line.  We all might agree that everything to the right of here is S&S, but somewhere in the middle here there are still a lot of violations, and these can be, depending on the exact situation, act of mind, and even some of our inspectors might make different calls on them, but they may or may not be S&S violations, or they may or may not be non-S&S.  But, clearly, some of them fall in the category that if they were left uncorrected, they would get to this right third, where all of us would then agree. 
  So part of our purpose was, and I know this is really, you know, an unartful kind of drawing -- hopefully, I've explained it, but part of our purpose is that the operators would focus on reducing and correcting, all being proactive and correcting, all violative conditions before they occur.  So, you know, as best we can, that's how I would like to leave that.  That's one of the reasons we proposed getting rid of the single penalty. 
  With respect to special assessments, I said earlier, we heard a lot of discussion on that, that that would give MSHA too much discretion.  One of the things we projected was that because we were increasing the amounts in the regular formula on the table, that most of the violations would receive an appropriate penalty under the regular formula.  And, in point of fact, the special assessments would drop because there is a lot of time and attention that MSHA gives to reviewing the special assessments, and we felt that that time and attention of our assessments people, of our enforcement people, metal, nonmetal, and coal, could be better spent out in the field doing inspections. 
  Robert, we had a specific number of special assessments that we projected from the existing.  Can you give that number, please? 
  MR. STONE:  We estimated the number of special assessments would decline from over 3,000 in 2005, and we estimated that of all of those of that amount, fewer than 500 -- I think, 391 -- would remain as special assessments.  The remainder would be treated as regular assessments. 
  MS. SILVEY:  But in so doing, we projected that their formula system would generate an appropriate penalty. 
  MR. STONE:  Yes.  For those penalties that were specials in 2005, using the regular assessment formula for those special assessments, those penalties would increase by 84 percent, treated as regular penalties. 
  MS. SILVEY:  Basically, I didn't have any questions of you, Mr. Van Horn.  I just wanted to try to make a few comments. 
  Does any panel member have any questions? 
  MR. CROCCO:  Yes.  I'll ask one question, Ron.  You mentioned, on the size of the operator, that the proposal discriminates against the biggest operators.  Did you have a recommendation as to how that should be handled, or is that just a general comment? 
  MR. VAN HORN:  The small mines should be judged the same as a large mine,  If they violate the law, they should have the same penalties as a large mine, and that's what's not really fair, whether it puts them out of business or not.  If they are violating a law, they are violating a law. 
  MS. SILVEY:  Okay.  Thank you, Mr. Van Horn. 
  MR. VAN HORN:  Thank you. 
  MS. SILVEY:  Next, we have Wes Addington with the Appalachian Citizens Law Center, Inc. 
  MR. ADDINGTON:  Thanks for your time.  My name is Wes Addington, and I'm with the Appalachian Citizens Law Center in Prestonsburg, Kentucky. 
  We're a nonprofit law office that works on the issues related to coal mining.  Personally, I represent coal miners that are in 105(c) discrimination cases in which they have been fired or discriminated against for making safety complaints.  I also represent miners and widows in claims for black lung benefits. 
  I guess my first comment would be about the hearing process itself.  I think there should have been a seventh hearing in this case.  I think it should have been located in eastern Kentucky.  If you're a Harlan County miner, if you're a Harlan County mine operator, Charleston or Birmingham are not really convenient if you want to make your comments known publicly. 
  Kentucky has seen 15 fatalities this year.  That's the most in over a decade.  That's another reason I think that east Kentucky deserved a hearing in this matter. 
  As to the proposed rule, looking at 100.3(b), the size of the operator's business, I think we would stress that the penalty points should be doubled also for the size of the controlling entity.  I'm not sure I understand the distinction made with the proposed rule just doubling up the size of the mine and then not changing the size of the controlling entity.  It seems like that would be, in some ways, unfair to larger operations that necessarily don't have a larger controlling entity. 
  Looking at the 100.3(c), the history of violations, I think the reduction from 24 months to 15 months and then taking in the history is problematic.  You know, if you look at the litigation on some of these citation contests, it's going to take a month, two months, sometimes three months to get the proposed assessment out there, 30 days to contest that, and then, with litigation, you're going to get outside that 15-month period, and I think you're going to have some of these citations resolved within that 15-to-24-month window. 
  So I think some of the more serious citations aren't going to be taken into account because there are not going to be final adjudications.  So, therefore, that really impacts this new, repeat-violation aspect of 100.3(c). 
  Looking at 100.3(e), the gravity, one thing that I noticed that I think I had a problem with was the fact that the permanently disabling category, under "severity" dealing with gravity, hasn't increased at the same rate as the lost work days and fatality category.  I'm not sure why that is.  I know, in Kentucky, in the last few years, we've had a major problem with a number of serious accidents in which miners have been maimed, paralyzed, permanently disabled.  So I think that category should also be increased, at least at the rate of the lost work days or the new fatality proposed penalty points. 
  Looking at 100.3(f), the law center doesn't have a problem with a decrease in the amount of the reduction, from 30 to 10 percent.  I think it's appropriate since operators are already required by law to abate the violations.  However, we did have a problem with the deletion of the 10 additional penalty points for failure to abate.  If, you know, the penalty assessment system rewards operators who abate violation, then it's only logical that the same system would punish those operators who don't.  I'm not sure why that should be removed. 
  Looking at special assessments, 100.5, I'm a little confused as to what's being done here, and, I guess, what the Department of Labor's stance now is on these former eight categories that are currently in the rule.  We believe that the eight categories should not be deleted from the law.  In fact, you could also include language, sort of as the preamble indicates, to indicate that these eight categories aren't exclusive and that MSHA could have the power to also have a special assessment in the categories outside of these eight categories. 
  I guess the problem I have with the language is you're deleting language.  I think the preamble is a little disingenuous as to why you're deleting some of the language currently in the rule.  If I could read from the preamble, it says that the reason that you're deleting the -- I think it's the second sentence, the sentence referring to the types of violations.  It says the sentence is unnecessary because the first sentence specifies that it is within MSHA's discretion to waive the regular assessment. 
  Well, the first part of the sentence is sort of redundant in that manner, but you're also deleting the part of the sentence that says, "Some types of violations may be of such a nature of seriousness that it's not possible to determine an appropriate penalty under these provisions."  And by looking at the numbers, what you're citing, that special assessments are going to go down by 85 percent, it almost seems like, to me, that you're looking at these eight categories, which are very serious, and now saying, well, I think they can be lumped in with the regular assessments.  And by deleting that language, you are taking away some of the seriousness that was formerly in the rule. 
  I heard some stats a minute ago on the special assessment that you expect the special assessment penalties now, on average, to go up by 84 percent.  Is that correct?  Could someone tell me what the regular assessments are expected to go up by, on average? 
  MR. STONE:  Yes.  Not taking into account the reduction in the number of penalties induced by this rule, they would go up by about 176 percent. 
  MR. ADDINGTON:  I guess that's my point again.  Again, the special assessments proportionally, these eight categories, it seems like, to me, in some ways, proportionally, they are not being taken into account as are other violations.  So I'm not sure why they are being lumped back in with the regular assessments now. 
  I guess my point is, it seems like some of the emphasis from these eight categories, including fatalities, injuries, violation of closure orders, not permitting inspections, 105(c) of violations, violations of imminent danger, is pretty serious stuff, and it seems like, to me, by removing some of the language within 100.5, you're no longer highlighting the gravity of these categories anymore.  In some ways, you're bringing them closer in line with some of the other violations in the regular assessment system currently. 
  I guess, finally, my final comment as to the proposed rules doesn't deal so much with the assessment but the collection of these penalties.  I think that's an area that has to be improved; otherwise, you can change the way that you assess penalties, you can increase those penalties to induce compliance, but if you're not collecting, that sort of all falls by the wayside.  I know, in eastern Kentucky, we have a number of operators, some of whom historically have failed to pay any fines because they knew they could keep operating that way, and nothing really ever happened to them. 
  I'm hoping that the way in which MSHA and the Treasury collect these fines improves greatly.  Thank you. 
  MS. SILVEY:  Thank you.  On your last comment, we are working closer with Treasury and have done -- I think we've made a lot of progress in getting in excess of a 180-day-old debt to Treasury and then, obviously, you know, where Treasury goes in collecting that.  But I think the backlogs -- we've been working frantically to reduce the backlogs, and, in point of fact, I think we are succeeding. 
  Do you want to add anything? 
  MR. WATSON:  If I can say, in the last year, we've gone from having probably $10 million in debt that's over 180 days' old at the agency to having probably $12 million that's over 180 days over at Treasury, so we shifted all of that to Treasury in the last year, so it's a big elimination of backlogs. 
  MR. ADDINGTON:  I applaud that.  What I was saying, it was not only unfair, in my personal opinion, to the miners that have to work in those mines in which operators aren't paying their penalties, it's unfair to your inspectors, who have to go in those mines, and then it's unfair to other coal operators who, like clockwork, follow the system in good faith, and either they pay their citation, or they contest it.  Some operators out there, especially in eastern Kentucky, were just ignoring the system.  It was almost like it didn't matter that nothing was being done, so I'm hoping that changes.  Thank you. 
  MS. SILVEY:  Thank you. 
  MR. STONE:  I wanted to respond to your comments about the special specials movement.  Part of the rationale for converting some of the specials to regulars is because it is our belief and expectation that, by revising the points system, the penalty points incurred for various degrees of negligence and other factors, that the actual regular schedule will properly deal with the circumstances  of the penalty and that only in fewer cases the special assessment will be needed. 
  You did note that the percentage increase is small for the specials treated as regulars than what's happening to the regulars, but there a couple of reasons for that.  One reason is because the old scale didn't in any way fully capture some of the special attributes.  We believe that they are better captured in our system here so that we would expect the percentage to go up less. 
  The second reason that they would be less is because, for some of the specials, at least, we're dealing with very high penalties to begin with.  So if a penalty in 2005 for special were, let's say, $30,000, we were limited to $60,000 here for a regular assessment.  So it couldn't go up more than 100 percent, couldn't go up 176 percent. 
  So, in other words, there is a ceiling here which sort of limits the percentage increase, to some extent, so the number we would expect to be smaller. 
  MS. SILVEY:  Okay.  Thank you. 
  Next, we have Stanley Geary, Pennsylvania Coal Association. 
  MR. GEARY:  Good morning.  My name is Stanley Geary.  I'm the director of regulatory affairs of the Pennsylvania Coal Association, and our office is in Harrisburg, Pennsylvania.  PCA appreciates the opportunity to present testimony on the proposed amendments to MSHA's civil penalty regulations.  With me is Hank Moore of Jackson Kelly, LLP's, Pittsburgh office.  Hank is PCA's legal counsel in mine safety matters. 
  PCA is a trade association representing both underground and surface bituminous coal mine operators.  The vast majority of the bituminous coal produced by Pennsylvania underground mines is produced by members of PCA. 
  Rather than simply implementing the new requirements of the Miner Act with respect to civil penalties, the proposed rule dramatically reshapes the whole penalty structure, as well as modifying the procedures, making the system imbalanced.  While some increase in civil penalties may be warranted, the dramatic reconfiguration of the system is not.  The new scheme will greatly increase the amount of operators' penalties without any demonstrated concomitant increase in safety and without an appropriate cost-benefit analysis of the impact of the proposed amendments. 
  PCA suggests that the proposed rule should be revised in the following respects. 
  The three-tier penalty system that includes single penalties for non-S&S violations should be retained. 
  The proposed addition of the new "repeat" category for history of violations should not be adopted. 
  The existing "good faith" reduction of 30 percent, rather than 10 percent, for prompt abatement should be retained. 
  The proposed significant increases in penalties, without a showing that such increases will promote actual safety, should be reduced. 
  The regulatory criteria for special assessments should be retained rather than eliminated. 
  The time for requesting a conference should be kept at 10 days, and the conferencing system should be improved. 
  I will address each of these recommendations. 
  The single-penalty assessments should be retained.  The existing, three-tiered assessment system -- single, formula, and special -- takes into account the fact that many enforcement actions concern technical violations, record-keeping violations, or violations with very low potential for injury. 
  In the May 21, 1982, edition of the Federal Register, MSHA outlined the need for the three-tiered system, including a relatively small penalty for non-S&S violations, and I'll quote from that, from the Federal Register:  "MSHA believes that the single penalty provision will help achieve improved health and safety for miners by eliminating the need to spend disproportionate amounts of time reviewing and processing violations whose impact on safety and health is minimal.  The primary focus of both MSHA and the mining community must be on the prevention and correction of conditions which pose a serious risk to the safety and health of miners." 
  This statement is still applicable today. 
  The removal of the single-penalty assessment will greatly increase penalties for non-S&S citations that present no real degree of hazard. 
  For example, one of PCA's members was just cited for an alleged violation of 30 C.F.R.  75.400 (accumulation of combustible materials) for the drill tailings from horizontal degas holes contained within a sump and which were soupy in consistency.  The operator had not previously been cited with respect to such tailings, and the citations represented a change in the field office's interpretation of what constitutes a "hazardous" accumulation of coal.  This would be assessed under the current scheme at $60.  Under the proposed rules, the penalty would be between $154 and $764, depending on the "repeat" history points. 
  There is an additional basis for keeping the single-penalty assessment in the penalty scheme.  A $60 penalty makes it far less likely for an operator to contest such citations.  Significant increases in penalties for violations that have minimal impact on safety and health will lead to more contests, resulting in increased costs and burdens on the operator, on MSHA, on the Department of Labor solicitor's office, and on the Review Commission; costs not considered by MSHA in its cost-benefit analysis of the proposed rule. 
  Decrease in the Good-faith Reduction.  MSHA has proposed changing the amount of reduction in the penalty when the operator abates the citation within the time period set by the inspector from 30 percent to 10 percent.  The rationale for this proposed change appears to be the assertion that the operator has to abate the condition anyway, and there is no reason to reward it for doing what it is supposed to do. 
  In 1982, MSHA had a different opinion on this subject, again quoting from the Federal Register:  "Since the civil penalty system, by its very nature, addresses existing hazards, timely abatement is most critical to miner safety and health.  The good-faith criterion is the principal mechanism within the civil penalty formula for recognizing abatement, and MSHA believes that this revision encourages the early correction of hazardous conditions." 
  In many cases, operators begin correcting violations as soon as inspector indicates that a citation will be issued but before it is actually written.  A reduction from 30 percent to 10 percent for the good-faith credit removes substantially all of the incentive for early correction of violations. 
  History of Violations.  MSHA has proposed making two significant changes in the use of an operator's violation history:  first, reduction in the time period for history of violations from 24 months to 15 months; and, second, creation of a second separate category of violation history for "repeat violations." 
  PCA believes that the reduction in the time period does more accurately capture what might be going on at a mine, and PCA supports that proposed change.  However, PCA objects to creation of the additional category, the "repeat" violation, to be used in addition to the operator's history of previous violations established in Section 105(b)(1)(B) of the Mine Act.  The addition of the repeat violation category to the already existing violation history category appears to count history twice for an operator.  Also, there are more significant problems with this proposal. 
  In each category of mining, but especially in underground coal mining, MSHA issues citations and orders for a disproportionate number of violations of one or two standards.  In coal mining, over 12 percent of all violations are of 30 C.F.R.  75.400 (accumulation of combustible materials).  The large number of violations of this standard is due in part to the fact that the standard does not set out any criteria for what constitutes a hazardous accumulation of coal and the fact that citations have been issued for a number of different types of conditions in various areas of mines. 
  For example, citations have been issued for depths of coal ranging from zero to eight inches under a conveyor belt; for coal that is so wet that it has to be scooped up in buckets; for material with an incombustible content approaching 70 percent; for paper bags and candy wrappers; and for "spider webs" of coal dust.  Those conditions addressed conditions at the face, in roadways even where the bottom consists of coal, along conveyor belts, and in return airways. 
  The use of a repeat violation criterion for such a vague standard, which can cover a myriad of situations, arbitrarily lumps together different areas of the mine and different violation scenarios.  Thus, penalties could escalated on a repeat violation criterion even if the violation in question is dissimilar to other violations of the same standard by the operator. 
  Also, the fact that the repeat violation category is not limited to S&S violations is problematic.  The thrust of this change, as well as other changes, such as elimination of the single penalty, appears to have virtually eliminated the significance of an S&S finding, contrary to the intent of the Mine Act. 
  Finally, the proposed repeat violation criterion fails to consider that large mines will receive more violations.  Many mines have even rather modest size now have 300 or more inspector days each year.  It is a given that the more inspector days a mine has, the more violations it will receive.  As noted earlier, violations such as those involving accumulation of combustible materials are subjective and involve issues in unrelated areas of mines. 
  Operators of large mines could receive more total citations of this type of standard than smaller operators because of the size of the operation and the number of inspection shifts received in a 15-month period.  As a suggested alternative, using a rate-per-inspection shift would at least provide some fairness in assessing repeat violations. 
  Special Assessment Criteria.  The proposed rule virtually eliminates the criteria to be applied in determining what particular violations are considered appropriate for special assessment.  We hope that MSHA's assertion that this is being done because fewer penalties will be reviewed for special assessment is correct. 
  We believe that the majority of violations should be assessed by the formula, and those violations potentially subject to special assessment should be limited to a very small category, which would include "flagrant" violations, as defined by the Miner Act.  "Discretionary" use of special assessments should be eliminated.  Such exercise of discretion only leads to arbitrary enforcement, as seen with respect to independent contractors, which was the situation in the Twentymile Coal Company case. 
  Also, MSHA should include in the regulations the matrix of criteria that it is now using to calculate special assessments.  The perception has always been that MSHA's special assessments are the result of arbitrary calculations.  We believe that it would be far better if mine operators understood how MSHA arrives at the amount of special assessments.  As PCA understands, there is a point system for special assessments.  That point system should be included in the regulations. 
  Operator Size.  The proposed rule will, according to MSHA, impose larger increases in penalties on larger operators.  There is no justification for this disparate treatment.  The penalty scheme already takes into account mine size.  There is no basis for disproportionately increasing the penalties on larger operators, especially given MSHA's position over the years that it is small mines that sustain a disproportionate share of injuries.  Larger operators, using MSHA's definition, typically have proven, effective, safety programs to reduce injuries.  Despite this, the proposed rule penalizes them because of their size. 
  Controlling Entity.  MSHA has asked for comments concerning the weight that should be assigned in the penalty scheme to the size of a controlling entity.  No weight should be assigned to the size of the controlling entity.  The Mine Act is very specific:  It is the size of the operator, not some other entity up the corporate chain that is considered in calculating the size of the penalty.  The existing system itself is inappropriate and contrary to law because of the use of the size of the controlling entity as a factor in calculating the penalty.  No new system should include that factor in any fashion. 
  Conferences.  The proposed rule will shorten the period for an operator or miners' representative to request a conference.  The purported basis is that it will result in penalties being assessed closer in time to issuance of a citation.  That rationale is without foundation.  The delay in the process occurs not in the request for a conference but after the request.  In many districts, conferences are not held for as many as five or six months after a request for a conference.  That delay is not caused by the conference request. 
  Further, there are substantial delays in the assessment of penalties, sometimes over a year for special assessments.  The reduction of the time period for requesting a conference serves no purpose other than to potentially cut off some operators and miners' representatives from having a conference. 
  A requirement that would expedite penalty assessment would be to require conferences to be held within 30 days of the issuance of the citation or order so that, if the operator is not satisfied, it can file and immediate contest. 
  Also, the current conferencing process lacks credibility.  Therefore, the rule should address the inadequacies of the conferencing process, including scheduling of conferences in a timely fashion and providing that conferences be fair, balanced, and independent of the district structure. 
  PCA believes it is time to remove the conferencing officers from under the jurisdiction of the district managers and their subordinate managers and give them authority to make changes to citations, orders, and proposed assessments that are appropriate under the facts.  That could significantly reduce the number of contests, thereby allowing all parties to concentrate their efforts on preventing and correcting hazardous conditions. 
  Again, PCA appreciates this opportunity to comment on the proposed rules.  We also intend to submit written comments by the deadline.  Thank you. 
  MS. SILVEY:  Thank you. 
  I have a few comments.  First of all, with respect to the single penalty, really, I don't think I need to make any more comments.  I want to, for the record, sort of reiterate the explanation I gave earlier at this public hearing because you mentioned that the single penalty addressed technical violations with low potential to cause harm, and, in point of fact, those are the ones that are the non-S&S violations. 
  But the only thing I would say, and I will say again, is that sometimes, because of the judgment involved, the non-S&S violation may appropriately fit as a non-S&S violation, depending on the circumstance, depending on the inspector, but, and I will reiterate this, if that condition is left uncorrected, that non-S&S violation can, in another situation, five minutes later, depending on the condition, can lead to an S&S situation, and it was with that in mind. 
  So I think that the non-S&S violations, clearly, the non-S&S violations are those that are not significant and substantial.  The S&S violations are the others.  But there is a gradation of violations that, depending on the circumstance, might fit in either category, either one category or the other, and they agency was intending to put an emphasis particularly on those violations and to get all of those violations eliminated from the mine and workplace, so I want to stress that. 
  I would like to ask you if, with respect to your comment on decreasing the good-faith reduction, would that proposed change -- I'm sort of going to ask you maybe in a little bit way than I asked the other gentleman -- would that proposed change, the change of the 30 percent to the 10 percent, cause any change to the way the operators in your organization, your trade association, address violations at their mines, do you think? 
  MR. GEARY:  I'll let Hank answer that because he spends more time out at the mines that I did. 
  MS. SILVEY:  And before I finish that, there was another.  It's a second part of that, because, at some point in your comment, you said that change would remove the incentive for the early correction of violations. 
  MR. GEARY:  Reduce it, substantially reduce it. 
  MS. SILVEY:  Okay.  I thought you said "remove."  Why would it reduce the incentive for the earlier?  Why do you say that?  Why do you say that? 
  MR. GEARY:  You asked me why I say that, so I'll answer that question, but I'll let Hank answer the first question that you asked. 
  My understanding is, if an inspector says, "I'm going to write a citation," the operator immediately starts to correct this before it's even written, and part of the reason they do that is they just want to get things done.  Let's say you have a paperwork violation, and you have 24 hours to fix it, and you were going to get a 30-percent reduction, but now you're only going to get a 10-percent reduction.  What's the rush in fixing that?  That's not a violation that affects health and safety; it's a paperwork reduction. 
  MS. SILVEY:  My question I'm asking you deals with all of the violations.  I'm just asking you, why would that change the approach in the way you -- 
  MR. GEARY:  Well, apparently, in 1982, MSHA felt that, by increasing the amount up to 30 percent, it would be an inducement, but now your position is it's no longer and inducement. 
  MS. SILVEY:  No.  Our position is not that it's an inducement.  We proposed a 10-percent reduction in good faith, so that's some reduction in good faith, and I guess all I'm asking for you is, does that change?  Would that change the way you approach the correction of violations -- 
  MR. GEARY:  That's the question I deferred to Hank.  I'll let Hank answer that one. 
  MS. SILVEY:  All right.  I'll listen to Hank, then. 
  MR. MOORE:  Let me answer that, as I don't think it would necessarily decrease the amount of time it takes an operator to abate a citation, but recognize what we have here.  We have a strict liability act.  There is a violation whether or not the operator knows of it.  So when the inspector walks up on him, the operator may never have known it, and, at that point, the inspectors says, "I've got a problem with this," and the operator then takes steps to correct it.  That should be rewarded, in our view, and recognize also that the inspector walks up to him and says, "I'm going to cite this," and then, in coal, what they do is they go outside at the end of the day and write it up. 
  Well, a lot of times -- in fact, a majority of the times -- that's corrected before it's put on paper, which is what the act requires.  The abatement time, actually, as I understand most of the abatement times, looking at them over the years, really go from when they verbally told you about it. 
  There should be a reward for abating it quickly, and I think the 30-percent reduction is a far more appropriate reward than a 10-percent reduction, that historically you want operators, when the inspector says, "I've got a problem with this," to start taking action.  There is nothing wrong with providing them with an incentive to do that, and I think the 30 percent does; the 10 percent, I don't think, really does. 
  MS. SILVEY:  Okay.  At some point, Mr. Geary, you gave several incidents of non-S&S violations when you were citing in your testimony on 75.400.  You gave paper bags, candy wrappers, spider webs.  If I could recall your attention to that part of your testimony, would you repeat that exactly, what you said there? 
  MR. GEARY:  Yes.  I didn't say that it's non-S&S.  I would just saying that those are examples of different kinds of conditions that have been cited under that standard because that standard doesn't have subparts, as I understand it.  So there are -- 
  MS. SILVEY:  Go on, yes. 
  MR. GEARY:  So those are just examples of conditions that have been cited under that standard.  I didn't say they were cited as S&S or non-S&S. 
  MS. SILVEY:  Okay.  Give them to me again. 
  MR. GEARY:  Okay.  I'll give you a copy, if you want to follow along.  It's on page 4. 
  MS. SILVEY:  Yes.  Thank you. 
  MR. GEARY:  It's the second paragraph on page 4, and the examples are about halfway down in the paragraph.  If you want, I'll read them again for everyone's benefit. 
  "Citations have been issued for depths of cal from zero to eight inches under a conveyor belt; for coal that is so wet that it has to be scooped up in buckets; for material with an incombustible content approaching 70 percent; for paper bags and candy wrappers; and for 'spider webs' of coal dust."  Those are the examples. 
  MS. SILVEY:  And I know we've heard this throughout these public hearings.  People pick out, a lot of times, some of their most graphic citations.  I guess I would do the same thing. 
  Have you all received a lot of citations for paper bags and candy wrappers? 
  MR. GEARY:  I'll defer again to Hank. 
  MR. MOORE:  I have seen it -- 
  MR. GEARY:  Hank has spent his lifetime. 
  MS. SILVEY:  I know that. 
  MR. MOORE:  I have seen at almost every mine I've represented over the years paper bags, particularly rock dust bags, being cited as combustible materials.  I've also seen very recently at a mine -- 
  MS. SILVEY:  I was really looking for the candy wrapper one. 
  MR. MOORE:  I saw recently at a mine -- it's not in this district -- where they had actually gathered up things, such as paper bags and candy wrappers and the like -- and were staging them to take outside, and they were cited for combustible materials. 
  MS. SILVEY:  Okay.  I understand that, but do you have a lot of citations like that? 
  MR. MOORE:  I couldn't put a number on them.  I've seen enough of them over the years to know that it is not uncommon. 
  MS. SILVEY:  I'm going to ask you the same thing that I've asked other people throughout these hearings, seriously.  Some of your paper bag and candy wrapper citations, I would like you to send to us. 
  MR. MOORE:  Okay. 
  MS. SILVEY:  That's all.  That's all that I have.  Does anybody else have any comments? 
  MR. CROCCO:  Let me ask you a question about the size of operator.  You said you objected to the proposed change -- operator.  Were you intending to say that the current system is adequate, in your view, or did you have something else in mind? 
  MR. GEARY:  I'm going to let Hank answer that one, too. 
  MR. MOORE:  I think the current system is adequate.  It addresses size of operators in a way that's consistent with the Mine Act. 
  MR. MONTALI:  Yes.  I have one question.  You did say you disagree with the 10 days-to-five days for requesting a conference and that there are some areas that citations would normally take between five and six months to be conferenced.  I would like you, if you have it available, to send out to this group so we can review that because I'm not aware of it taking that long, unless there are some special circumstances involved.  So If you have a listing of what offices you were dealing with in that timeframe, we would like to have some comments -- 
  MR. MOORE:  We did conduct a survey that included districts either than District 2, and the outside range was where we were looking at five to six months, but we can provide some of the names of those districts and what portions of the districts we're talking about. 
  MR. STONE:  I just wanted to make one observation, basically to amplify, I support what Pat Silvey said about single penalties and the fact that what currently are single penalties really encompass a wide range of different types of penalties.  Some of them really are pure non-S&S.  Some have the potential for being S&S.  Some are paperwork.  Some may be wrappers or other factors that would seem to be relatively non hazardous perhaps; some are not. 
  But I wanted to emphasize that by going to regular penalties, it allows us to make those distinctions.  By our calculations, approximately 65 percent of what were single penalties, we estimate, would still receive the minimum penalty.  It would go from $60 to $100, and then there are various gradations, but the point is that, at least the majority, about two-thirds of the penalties, would, in fact, be treated equivalently except for a $40 increase, as the single penalty is now.  So, again, it allows us the flexibility to more accurately reflect the circumstances of the violation. 
  MR. GEARY:  And this is no disrespect, but these percentages that you're throwing out are really just estimates, projections.  You don't know if that's going to be the case three years from now.  That's part of the reason why we have the concerns that we have. 
  MR. STONE:  Those numbers were based on looking at the penalties in 2005 and giving them what they would receive as a regular penalty.  Admittedly, circumstances could change, and the composition of penalties could change, but at least to the extent that we looked at set of penalties in 2005, and we calculated them as regular penalties, that's what we would find.  So that's, we think, fairly accurate. 
  MR. GEARY:  Okay.  Thank you.  Anything else? 
  MS. SILVEY:  No. 
  MR. GEARY:  Thank you. 
  MS. SILVEY:  Thank you very much. 
  Okay.  Next on our list, we have Ron Bowersox, UMWA, United Mine Workers. 
  MR. BOWERSOX:  Good morning.  My name is Ron Bowersox of the United Mine Workers. 
  First, I would like to address to the panel, the location of hearings should be considered in the future in order to receive maximum participation.  Washington, PA, would be a more central location hub for the miners represented here today.  The distance of travel, the time you're coming into Pittsburgh, has got to be a considering factor.  Some of the miners here today worked the afternoon shift last evening, and they get up, like, four or five in the morning to get here to this hearing. 
  I would like to speak on penalty points, small mines versus large mines, MSHA's points based on mine size.  Small mines have less inspection shifts than larger mines do per quarter.  That's a large advantage.  For example, Emerald Mine, to complete this last quarter, they had as high as five inspectors on one shift to complete that mine size.  Small mines didn't complete within a couple of weeks, sometimes less. 
  I agree with MSHA that often fines are too low at the larger mines, which results in it's cheaper to pay the fine than interfere with the production.  Why wouldn't that theory not work the same in a small mine? 
  I also believe a violation is a violation.  I've requested -- a couple of times, and never once did my wages have a bearing on what the cost of the fine would be, do I can't see any difference for the coal miner. 
  A miner working a small mine should have the same equal enforcement to protect them.  The agency solicits comments on whether greater weight should be placed on the size of the controlling entity.  Paper trails are hard to follow.  I would like to know how you're going to do this sometimes. 
  I agree with Mr. Van Horn.  This dual enforcement must be stopped, and all operators must be required to abide by all regulations or suffer the same initial penalty. 
  MSHA should not be in the business of determining if penalties assessed result in the loss of a business. 
  One last item that I would like to see if the panel would address:  How are you going to address safeguards at the mines, as far as assessments?  Are they the same, or is there any change in this proposal? 
  MS. SILVEY:  No change in this proposal with respect to addressing safeguards.  Safeguards would be addressed as they are now, yes.  No change under this proposal. 
  MR. BOWERSOX:  Okay. 
  MS. SILVEY:  The safeguard would be written as it is now.  The inspector would come back. 
  MR. BOWERSOX:  That's all I have. 
  MS. SILVEY:  Does anybody have anything? 
  (No response.) 
  MS. SILVEY:  Thank you, sir. 
  At this point, is there anybody else in the audience who wishes to speak?  Anybody else in the audience who wishes to speak? 
  MR. BAKER:  It looks like me. 
  MS. SILVEY:  I was going to say, you know what they say, three times. 
  MR. BAKER:  I wasn't going to let that happen. 
  MS. SILVEY:  You weren't going to let it get to the third time. 
  MR. BAKER:  I wasn't going to let that happen. 
  My name is Tim Baker.  I'm with the United Mine Workers.  I'll try to limit my comments today to some of the issues that I've heard, since I've already testified once, and I'll kind of do, as best I can, and just do some highlights, but there are a lot of areas that we agree with the commenters that have been here before me, and we would assert that a reduction in the number of days to ask for a conference from five to 10 is burdensome. 
  With the current scheme of shifts that people work at the mine, and especially at our operations, and we'll have Mine Committee men or Safety Committee men on several different shifts.  The citations that are issued need to be discussed with those folks, and sometimes it's difficult to get together.  So we would certainly advocate that the 10 days is retained.  We've got to be honest about this.  Reducing that timeframe from 10 days to five is not going to expedite this process at all.  It's just not going to do it.  So we would advocate and agree with the previous comments. 
  In some ways, as I listen to what goes on, I find some of the comments disingenuous because I continue to hear that citing someone and citing them with a higher penalty will not induce them to act as a good citizen.  I guess, to put it in perspective from where we come from, most of the employers out there have programs for safety at their mine where they will -- I'm using their words -- take action that is punitive against an employee who does something unsafe, or they perceive to be unsafe. 
  So it's pretty disingenuous to come before any panel and say, "Boy, if you fine us, and it's punitive, it doesn't incur just to be good citizens and do everything right," but turn around and go back to the mine and say to Bill, the roof boulder operator, "That was an unsafe act, you know.  I'm going to take some punitive action against you." 
  So it's one way or the other.  We believe that the fine scheme that is created here may not be perfect, and we have our objections and have registered some of those, but that is the only course to at least have some of these operators come into compliance, and we would like to point that out. 
  The other thing I would like to point out is there continues to be discussion about the subjectivity of the inspector.  Will it be S&S?  Won't it be S&S?  What's the gravity going to be?  It's all subjective, and it's so difficult to get your arms around, and they agency really has us where they want us because they can do these things, but, on the other hand, as we go through the process, they also say, don't be real prescriptive whenever you do a rule so that you don't tie us into anything real tight. 
  You either get the subjectivity, or you get the long document that tells you exactly what you can do every step of the way.  So we've got to look at this very carefully and say, really, basically, which way do you want it?  Do you want us to use a little subjectivity?  Sometimes you may feel it works against you; sometimes it may work for you, or do you want us to tell you every step of the way, and if you step just outside the line, you're going to get nailed? 
  So you've got to be careful -- I guess it is kind of be careful what you ask for.  So we've got to look at those things.  I would say the example that was used, 75.400, which is obviously the big item that is written, generally speaking, they are not S&Ss, as I see them.  Most of them are not S&S, but the citation or the violation still exists.  It's got to be corrected.  There has got to be an inducement to correct that, and to say these are kind of minuscule and paperwork kind of thing, they are not.  The last time I heard, rock dust bags do burn.  I don't care if there was rock dust in it at one time or not; it still does burn, so it is a combustible material. 
  All of those things need to be taken into consideration when we look at these things.  Some of these citations are not just paperwork.  I would say, even the non-S&S, the vast majority are not just paperwork issues, so we've got to look at those. 
  We would agree that there is a deep disparity between small and large mines.  That should never be the case.  We're in the business of mining coal.  You know the rules, and if you don't know the rules and don't understand them, first of all, you shouldn't be in the business. 
  Secondly, if you're in the business, know the rules, and you break the rules, everybody should be treated equally.  We've stated this before, but I don't think we can state it often enough, is the baseline fine should always be the same.  If there are extenuating circumstances, such as gravity, and we would agree with the repeat violations, should be a factor, then you can go up from there and increase those fines.  But that should not apply less to a small operator than it does to a large operator.  If the conditions at one mine that has 400 employees are exactly the same as one that has five employees, the end result should be the same fine. 
  I mean, fairness across the board, and I know most people in here won't feel bad for me, but yesterday I was in Pittsburgh, and they towed my car.  When I went to get the car out of the impoundment, they didn't say, "By the way, about how much money do you make?  How big are you?  Can you afford the money to pay the fine?"  They just said, "Here's the bill.  Pay the bill." 
  The same scenario should work.  You violate; the fine is the fine because there are certain responsibilities, I think, that we look for everybody to have.  Mine operators are supposed to comply.  Miners are supposed to work safely, and MSHA has a set of responsibilities that you all know well, and that's the enforcement of the Mine Act. 
  You issue citations, you assess them, and you collect penalties, and since we're to that point right now, we do need to address -- you do need to go back and have some teeth that collects these penalties.  Simply saying, "We sent a large chunk of them to Treasury," doesn't do it because they will sit at Treasury uncollected, and that doesn't induce compliance. 
  There has got to be some mechanism to get those sent back and shut that operation down.  They shouldn't be mining coal if they don't pay their bills. 
  I talked about equal inspection time at mines.  I think that was raised here before, but we should have some comparable inspection time.  If it takes three days to do a section in a large mine with X amount of equipment, it should take those same three days in a small mine.  It should all be the same. 
  I didn't talk too much the last time about special assessments, but I think we need to do that.  We are concerned that, when you drop the eight categories, obviously there will be a wholesale run to eliminate special assessments, and maybe that's not all bad, to look at that in a broader context.  But I think we need more information on what's going to trigger a special assessment because right now we're just saying, well, we'll look at it and decide, but that's pretty broad discretion. 
  I think we need, at least, some parameters, need to be clear on at least some of the issues that will certainly be out there for special assessment.  We're not comfortable with fewer of them being special assessed, but it's hard to make too many statements on it because the details aren't there.  The data isn't there.  I think we need more of that data. 
  I've also spoken, and will just say again that this is the Mine Act.  This is not just a coal mine act.  I think you need to reassess what you're doing, whether it's sand and gravel or anything in metal, nonmetal.  Equal treatment across the board is something that needs to be considered here.  They are, after all, miners and deserve the same protections. 
  We will get the final information to you, but, you know, the concern with small mines, sometimes reporting is a problem, and I think we all recognize that.  The reporting can be simply a paper chase.  Do you report all of your accidents, or don't you?  I would like to believe that they are all reported, but we all know better. 
  So what we do is when we do an analysis, and we will get that to you in our final comments, the one thing that you're going to report every time because you have no choice is a fatality.  I think, as you look at those numbers, you will see that small mines are the largest problem in this equation.  Congress gave you the ability to look at small mines specially. 
  We believe you're doing it in reverse.  You have enough data to show that small mines are a problem.  They need more enforcement.  They don't need less.  They don't need benefits that ought not be there.  You have the ability to change the statutory language, as you have proved in the past, to eliminate this, whether or not they stay in business.  That's not MSHA's problem.  If they can't pay, they should go out of business. 
  The reduction, I've talked about before.  We don't believe there should be a 10-percent reduction for good faith.  You know the rules.  You broke the rules.  You pay the penalty. 
  You can't say that you get a benefit, and I shouldn't use it like that -- you shouldn't get something special off your bill just because you abated it in an allotted amount of time, and if that is an incentive, is that is truly considered, at this point, an incentive on the part of some companies to abate within a short period of time, we would suggest you just shorten the abatement period.  Instead of giving them five days to abate, give them two.  That will get it abated faster.  There should be no incentive, and there should be no discount for taking care of that. 
  I don't think I have anything else.  I think we've pretty much covered most of the topics.  We will have written comments and certainly more data to fill in the blanks where we've made some statements where we believe or we see, but we would also ask the same from you.  We're still looking at those, and through this rule, there are many beliefs and assumptions on the part of MSHA.  It's hard to get your hands around beliefs and assumptions because mine might not necessarily be the same as what I'm looking at on the paper I'm reading. 
  If there are any questions or comments, I would be happy to take those questions and see what I can do with them. 
  MS. SILVEY:  I'm going to make a comment now.  Tim said we've got believes and assumptions, and we do have beliefs and assumptions, particularly in our analysis, and as I've said at other public hearings -- I haven't said it thus far today -- when you all read the analysis, and not necessarily saying that it's the most exciting reading in the world, but when you do read it, if you disagree with our assumptions, then let us know, and the most optimal comment would be the one where you disagree with our assumptions, and you provide specific data in terms of why you disagree or alternatives to what our assumptions were.  That would be very useful in helping us develop this final rule. 
  Had Tim not raised this, I might not have said, but he was saying he is still getting through.  When you look at the regulatory analysis, one of the things we did is we, as Robert stated earlier, we took our 2005 -- that was our body of violations -- that's what we had to start dealing with -- we took all of the violations cited in 2005, and then we developed a baseline, a baseline of civil penalties, 24-point-some million dollars, if I recall, and a baseline of violations. 
  Then what we did is we took the proposed rule, and we applied, under the new table and the new dollar amounts under the proposal, we applied those to those violations, and then we got, if I'm not mistaken, roughly, $68 million, all of this done in the aggregate now. 
  Then what we did is we said that, when these new penalties go into effect, most operators will expend some amount of money, and I think our projection was $8.9 million, to improve compliance.  We didn't add that to the cost of the rule because that was to improve compliance related to existing standards, so we had already costed those out. 
  And we said, when they will spend that $8.9 million, ultimately, it will be the passage of some time, and I was quoted in one of the papers as saying six months.  Your guess is as good as mine.  It could be six months or within a year, but within some passage of time, then the violations would go down, and we then estimated that roughly, because of this improved compliance, that would be about 20 percent -- I think it was 20 percent -- fewer violations. 
  So, therefore, ultimately, then, the penalties would go from $68 million to $45 million.  Now, those are assumptions, but we did explain those, and we broke down the penalty amounts by coal mines, by sizes of coal mines, by metal/nonmetal mines, and by sizes of metal/nonmetal mines. 
  But if there are those of you who, when you read that, you disagree with those assumptions, then let us know.  Let us know alternatives that you might have.  We would really appreciate that. 
  I didn't have any questions of you, Tim.  You triggered my thinking about making that comment. 
  MR. BAKER:  But just one comment on that.  You know, as the rule clearly does, I think we've all looked at the previous rule and said, well, you know, larger fines get fined larger amounts than smaller mines, and that was part of that process.  But as you created this particular document, you've increased that substantially beyond what it ever was before. 
  Listen, I would never mean to sit here and say, you don't fine the large operator.  I mean, if they get banged, they get banged.  That's not my problem.  They have got to pay their bills just like everybody else.  But it has gotten to the point where this particular document that almost seems to be taking the fairness out of the system at all, and I'm saying that inspection times should be equal, but I'm also saying, if the fine for a large operator is $60,000 for this particular violation, and that condition exists at a smaller mine, that ought to be $60,000. 
  If they can afford to pay it, fine.  If they can't afford to pay it, what you're actually doing is you're saying, "Well, we're going to fine you less.  You're allowed to have a lesser degree of safety than the other guy," and that's what it amounts to, in our estimation.  The bill is the bill. 
  MS. SILVEY:  We understand.  We clearly have heard that comment, but I do want to say to everybody so you do know, we're not necessarily trying to signal how what's going to happen in the final rule because it doesn't mean that a small operator wouldn't get a penalty, as Tim; it just means that, in computing the penalty, different points would be given for certain of the criteria, and for the size criteria, the very smallest operators, under this proposal, which is no different than the existing rule, would get no points for size.  But we did that, trying to be consistent with the Mine Act, which is what I read at the beginning, talking about the six statutory criteria. 
  We've heard a lot of comments on that, so I just want everybody to know that -- 
  MR. BAKER:  But now you've got me going again because you changed the statutory criteria previously in previous rules.  So you can't hide behind, we have a criteria that's statutory because the statutory criteria of the Mine Act is no ventilating face areas with belt air.  So you can change it if you want. 
  MS. SILVEY:  I didn't finish with you, Tim.  I have one last question.  When they towed your car in Pittsburgh, where were you parked? 
  MR. BAKER:  I was parked in Arby's parking lot. 
  MS. SILVEY:  Now you're telling me a lie, that you were parked in Arby's parking lot. 
  MR. BAKER:  Okay.  Just to make it real brief, I thought if I went in and bought a coffee, I could walk my kid back to his dorm, but the two truck was late. 
  MS. SILVEY:  I won't say any more because I'm making some assumptions now -- 
  MR. BAKER:  I paid my citation. 
  MS. SILVEY:  -- that I'd better not make.  Okay.  Thank you. 
  MR. MOORE:  I just have one quick comment regarding the reduction for good faith -- made a comment such as there should be no percentage given for good faith doing that, and the comment was, instead of five days, reduce it down to two days.  You know, whenever citations are determined by the inspector, they review the situation, see exactly what that situation is, and determine the appropriate amount of time for that company to correct that violation. 
  Now, it may be a situation where it could take five days, or it could be a situation which generally takes five minutes.  The inspector actually has to determine that, what is the proper amount of time needed for that company to abate that citation and take care of that violation? 
  So if the determination is that it needs two days because they have to order a part, and they do order it, that's the quickest that they can do that, to correct that.  Then, on the other hand, if you don't have enough air in the last cross-cut, they are not giving them a week to do that; they are going to do that immediately.  So I think the inspector actually tries to take the appropriate action with the circumstances involved to do that. 
  MR. BAKER:  And I would agree, and I would say, in most instances, they do that, but I did hear the comment that we try abate it quickly so we can get our 30 percent.  Well, if the idea is you're going to get your 30 percent, and you do it quick, apparently in these instances where you can do it quick, you shouldn't get a rebate.  Just do it quick.  We'll give you less time to do it.  That way, we'll know it's done quick. 
  But I do understand what you're saying, and there are those instances where, you know, you may need 15 days to do something, and I understand that.  But to make a comment that we do that quickly so we can get our 30 percent is kind of, in my opinion -- 
  MR. MOORE:  If it can be done in five minutes -- 
  MR. BAKER:  It should be done in five minutes.  You know, I've got to be honest with you.  Most inspectors that I have dealt with look at those things pretty objectively and give the allotted time needed for some things and say, "No, you've got to fix it now."  But that's what the comment was kind of directed at.  Anything else?  Thank you. 
  MS. SILVEY:  Thank you.  Anybody else? 
  MR. O'DELL:  My name is Dennis O'Dell, administrator of occupational health and safety for the United Mine Workers.  I didn't plan on speaking today, but based on some of the conversation that took place, I would like to add some comments, if I may. 
  As of January of this year, it's been a very, very trying time for the coal industry.  It's been a bad year for us.  Many things have happened.  Some people say bad luck.  Some say conditions have just caught up with us.  But whatever, it's been a bad year for us, and as a result of that, Congress has given us an opportunity to fix some things so that the industry will be better for operators and miners throughout the country. 
  There is a lot of confusion based on this rule, and I think you heard it first in Alabama.  I looked at it, Tim looked at it, our field reps looked at it, our rank-and-file miners looked at it, and when we sat down, and we talked about how this rule was written, there was still a lot of confusion on this single assessment, and you've heard that through testimony. 
  I would say that if the operators were honest, and I think they have been -- there is some confusion on their end as well as what this is saying -- that's something that maybe, through our fault, we should have requested when the rule first came out, to have a sit-down, if at all possible, with all interested parties to get through this. 
  I know there is still some time left before the closing date on this.  I would like to see the opportunity, and I don't even know if it's possible or not, with the rules of ethics and everything else, but I would like to see the opportunity for all interested parties to be able to sit down in an open-room discussion and have some good, healthy debate as to what this really does mean so that we can answer, give a good, solid answer, to what our positions are on how this whole structure is laid out. 
  I think that has to happen because, even as of today, as people walk out of here, they are going to be confused.  I'm not sure that by eliminating the single assessment, the $60 fine, that it's going to do the right thing, even though I'm hearing that fines will increase the numbers. 
  It's going to generate more revenue, more money for you, the agency, but I'm trying to think back about what the percentage of the $60 fines are, as far as the fines structure goes now.  How much of that is actually written in the whole realm of things today versus the S&S, the more serious citations?  What percentage of that is actually -- I would say that's the majority of the fines that are written today.  Is that going to go away? 
  Here is the important part of my whole comment is that we have an opportunity to make some good changes for the very people that need the changes to be made.  Number one, that's the inspector that's on the ground writing these citations.  He needs to understand the rules and the guidelines, and he needs to have the tools to be able to write the citation so that the citation sticks, and the next step, the conference officers.  They need to be able to understand how this is going to work as well.  They need to be able to have the tools to understand how this whole process -- I honestly believe there are still -- Patricia, I heard what you said early on, at the beginning of this. 
  I talked to my folks from Alabama after the first hearing, but even after the discussion that took place then, there is still some confusion on how this whole thing is supposed to work.  Collection is still a huge problem, collection of these fines. 
  There's a lot of fines, and I know you said earlier that that's being addressed, but there's a lot of fines that go uncollected, and that's something that needs to be fixed, and I don't know if it can be fixed in this setting or not, but I'm going to make the comment anyway just for the record that that's something else that needs to be addressed. 
  I want to thank you guys for all of the hard work you've done in putting this together.  We don't want to see anybody put out of business because those operators are the very people that we work for.  So we don't want to see anybody put out of business, but what Tim, and I heard other people say, is you have to level, and I just want to reinforce, you have to level that playing field. 
  Based on what I've read and the testimony I've heard, it's still a very uneven playing field for the large operators versus the small operators, and I think that's a huge thing that has to be fixed in this whole process because it certainly seems that those small operators -- it's going to be based on the criteria. 
  Excuse me for my ignorance on this, but the criteria that's set up, and how the new structure is written, those $100 fines, if they are taken to be assessed, and they get a 30-point reduction for timely abatement, and I can't remember now what the other, without looking at it in front of me, where are those fines actually -- what are they going to be?  Are they going to be less than what that $60 fine would have been to begin with?  I'm sure that's an easy answer. 
  MR. WATSON:  The $100 is after the good-faith reduction. 
  MR. O'DELL:  After the good-faith reduction.  Okay.  So Tim probably understands that better than I do because Tim has been -- we've had some discussion on this -- Tim has been involved, as far as putting our comments together on this.  I just want to address this panel and say that I appreciate the work that you've done, but please take the comments that you've heard.  Patricia, the fact that you've had to reiterate at each hearing -- 
  MS. SILVEY:  I don't disagree with you, and I'm going to do it one final time because I don't want anybody to leave here confused. 
  MR. O'DELL:  But there will be.  That's the problem.  There is going to be still confusion out there as to where this whole thing is supposed to go.  So with that, I'll shut up, and I thank you for your time. 
  MS. SILVEY:  Thank you. 
  I'm going to talk about the single penalty again.  On the single penalty, I really would like nobody to leave here not fully understanding what the agency did with respect to the single penalty.  We said in the proposal we would delete the single penalty, and in that part of the proposal, on that page, I took it last night and looked at it again, where we said we would delete the existing single-penalty assessment provision, page 53056, and it's a semicolon. 
  What we could have done, equally could have done, was to say, after that semicolon, taken the sentences from 53066 -- I'm reading from 53056 -- taken the sentence from 53066:  "Regular and single-penalty assessments would be issued as regular assessments under the proposed rule," which means that all non-S&S violations, which were issued as single penalties today, under the proposal, would be issued as -- what did I read?  I'm going to go back and read my exact sentence:  "-- would be issued as regular assessments under the proposed rule." 
  Dennis, you asked the question, Is that going away?  The single penalties are not going away.  The inspectors will be issuing them, as they do today, using the citation form, making the same determinations with respect to the conditions at the mine, with respect to gravity, negligence, likely, highly unlikely, and it's just that those citations would be processed under the formula system because, under the proposal, we now would have a two-tier system as opposed to a three-tier system.  We would have the regular assessment and the special assessment. 
  So it is important to me, and I think I speak for our panel, the Labor Department's panel, that as we close these hearings today, that the public, particularly the mining public, understands that the non-S&S violations under this proposed rule, the one that is the subject of this hearing, and non-S&S violations would be processed as regular assessments under the proposal. 
  One thing I did want to comment on, Mr. O'Dell, and that is the collections.  We've heard a lot of comment on the collections, and I, you know, spoke to it, but with respect to treating collections in this proposal, the collection issue is outside the scope of the rule-making, but it is a part of MSHA's business, and I felt like we should talk to it, and it is a part of what the assessments office does. 
  MR. O'DELL:  Is there anything in this rule that would give the inspector the ability -- I think you said it earlier -- it gives them the power to actually shut a section down?  Is that written -- 
  MS. SILVEY:  For nonpayment of penalties? 
  MR. O'DELL:  Yes. 
  MS. SILVEY:  No. 
  MR. O'DELL:  Just on the violation, the severity of the violation. 
  MS. SILVEY:  Yes.  Right.  On the severity of the violation. 
  (Discussion held off the record.) 
  MS. SILVEY:  Is there anybody else who wishes to speak? 
  (No response.) 
  MS. SILVEY:  There being nobody else, it appears as though nobody else wishes to speak, then, at this point, I'm going to say, on behalf of the Labor Department and the Mine Safety and Health Administration, give our appreciation to everybody who appeared at this hearing today.  Those of you who provided testimony and comment, those of you who appeared here and did not comment but at least showed to us that you have an interest in these proceedings, we want you to know that we appreciate that. 
  We have gotten a lot of comment.  This may not have been a long hearing, but this hearing is indicative of the types of comments and testimony we've taken over the process of the six hearings, and the comments have run the gamut.  I mean, we've heard support for certain provisions of the proposal.  We've heard opposition to certain provisions. 
  As I stated earlier, for those of you who will provide us comments before the record closes, we would be very appreciative if that, in your comments, you would provide specifics that support whatever your position is, specifics in support of your positions and your comments.  If you have alternatives to the proposal, we would appreciate very much you supplying us with specific alternatives. 
  In any event, as I said earlier, we have to do this final rule by December 2 of '06.  Obviously, that doesn't leave us much time, but as we go forward, we will be very mindful of your comment and testimony, and as we develop the final rule. 
  So, with that in mind, at this point, I'm going to conclude the hearing, and we will stay here, however, for the next -- probably we will stay here until at least 1 o'clock -- so I'm saying that to all of you -- in case anybody knows anybody or even thinks that they want to go back on the record and make a comment, we'll be around.  But at this point, there being nobody else who wishes to speak, and, again, finally, me expressing appreciation to all of you, I will conclude these proceedings. 
  (Whereupon, at 11:00 a.m., the hearing in the above-entitled matter was concluded.) 
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 REPORTER'S CERTIFICATE
 
DOCKET NO.: n/a 
CASE TITLE: Proposed Rule Changes 
HEARING DATE: October 19, 2006 
LOCATION:  Coraopolis, Pennsylvania 
 
  I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and notes reported by me at the hearing in the above case before the United States Department of Labor. 
 
    Date:  October 19, 2006 
 
                                       Joel Rosenthal 
    Official Reporter 
    Heritage Reporting Corporation 
    Suite 600 
    1220 L Street, N.W. 
    Washington, D.C.  20005-4018