13592 Federal Register / Vol. 72, No. 55 / Thursday, March 22, 2007 / Rules and Regulations 

DEPARTMENT OF LABOR 

Mine Safety and Health Administration 

30 CFR Part 100 

RIN 1219–AB51 

Criteria and Procedures for Proposed 

Assessment of Civil Penalties 

AGENCY: Mine Safety and Health 

Administration (MSHA), Labor. 

ACTION: Final rule. 

SUMMARY: This final rule revises 

MSHA’s existing civil penalty 

assessment regulations and implements 

the civil penalty provisions of the Mine 

Improvement and New Emergency 

Response (MINER) Act of 2006. 

This final rule will increase mine 

operator compliance with the Federal 

Mine Safety and Health Act of 1977 

(Mine Act), as amended by the MINER 

Act, and the agency’s safety and health 

standards and regulations, thereby 

improving safety and health for miners. 

DATES: Effective Date: This final rule is 

effective April 23, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Patricia W. Silvey, Director, Office of 

Standards, Regulations, and Variances, 

MSHA, 1100 Wilson Boulevard, Room 

2350, Arlington, Virginia 22209–3939, 

silvey.patricia@dol.gov, 202–693–9440 

(telephone), or 202–693–9441 

(facsimile). 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Discussion of Final Rule 

A. General Discussion 

B. Section-by-Section Analysis 

III. Executive Order 12866 

A. Population at Risk 

B. Costs 

C. Benefits 

IV. Feasibility 

A. Technological Feasibility 

B. Economic Feasibility 

V. Regulatory Flexibility Act and Small 

Business Regulatory Enforcement 

Fairness Act (SBREFA) 

A. Definition of Small Mine 

B. Factual Basis for Certification 

VI. Paperwork Reduction Act of 1995 

VII. Other Regulatory Considerations 

A. The Unfunded Mandates Reform Act of 

1995 

B. Treasury and General Government 

Appropriations Act of 1999: Assessment 

of Federal Regulations and Policies on 

Families 

C. Executive Order 12630: Government 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

D. Executive Order 12988: Civil Justice 

Reform 

E. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

F. Executive Order 13132: Federalism 

G. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. Executive Order 13272: Proper 

Consideration of Small Entities in 

Agency Rulemaking 

I. Background 

On September 8, 2006, MSHA 

published a proposed rule to revise its 

civil penalty regulations (71 FR 53054). 

MSHA received written comments in 

response to the proposed rule. In 

addition, the agency held six public 

hearings on September 26, 2006 in 

Arlington, Virginia, September 28, 2006, 

in Birmingham, Alabama, October 4, 

2006, in Salt Lake City, Utah, October 6, 

2006, in St. Louis, Missouri, October 17, 

2006, in Charleston, West Virginia, and 

October 19, 2006, in Coraopolis, 

Pennsylvania. The comment period 

closed on October 23, 2006. On October 

26, 2006, MSHA reopened and extended 

the comment period to November 9, 

2006 (71 FR 62572). MSHA reopened 

the comment period to restate and 

clarify language in the proposed rule 

pertaining to the proposed deleting of 

the existing single penalty assessment 

provision. MSHA clarified that 

violations that would have been 

processed under the single penalty 

provision of the existing rule would, 

under the proposed rule, be processed 

under the regular assessment provision. 

In addition, MSHA reopened the 

comment period to provide interested 

persons additional time to comment on 

an issue that was raised at the public 

hearings in Charleston, West Virginia, 

and Pittsburgh, Pennsylvania, 

pertaining to safety and health 

conferences. MSHA stated that it 

intended to include a requirement in the 

final rule that a request for a safety and 

health conference be in writing and 

include a brief statement of the reason 

why each citation or order should be 

conferenced. 

The section-by-section analysis of the 

final rule addresses issues raised by 

comments and testimony. 

II. Discussion of the Final Rule 

A. General Discussion 

This final rule results in an acrossthe-board increase in penalties from the 

existing regulations; however, penalties 

increase more significantly for large 

mine operators, operators with a history 

of repeated violations of the same 

standard and for operators whose 

violations involve high degrees of 

negligence or gravity. The higher 

penalties in the final rule are intended 

to increase the incentives for mine 

operators to prevent and correct 

violations. 

MSHA notes that under the Federal 

Civil Monetary Penalty Inflation 

Adjustment Act of 1990 (Inflation 

Adjustment Act), as amended by the 

Debt Collection Improvement Act of 

1996, the Agency is required to review 

and, as warranted, adjust penalties 

based on inflation at least every four 

years. On June 15, 2006, the MINER Act 

was enacted and amended section 110 

of the Mine Act raising the maximum 

civil penalty to $220,000 for violations 

that are deemed to be flagrant. This final 

rule codifies the maximum penalty of 

$220,000 for flagrant violations. In 

addition, the MINER Act established 

minimum penalties of $2,000 and 

$4,000 for unwarrantable failure 

violations, and minimum penalties for 

failure to timely notify violations. 

Although this final rule does not 

increase the $60,000 maximum civil 

penalty for non-flagrant violations, the 

effect of the across-the-board penalty 

increases from the existing regulations 

is tantamount to an inflation 

adjustment. Due to these penalty 

increases, the penalties in this final rule 

will not be adjusted under the Inflation 

Adjustment Act until 2011. 

MSHA received numerous comments 

in support of and opposed to the 

proposed rule. Many commenters stated 

that the proposed penalty increases 

were unnecessary because between 1990 

and 2005, both injuries and fatalities 

have steadily declined. Other 

commenters stated that the proposed 

increased penalties will not induce 

greater compliance with the Mine Act or 

MSHA’s safety and health standards and 

regulations. Some of these commenters 

stated that the proposed increases will 

merely result in operators diverting 

money from safety and health programs 

to penalty payments. Other commenters 

expressed concern that MSHA did not 

provide evidence that increased 

penalties would result in increased 

compliance and requested that MSHA 

immediately release all of the citation 

and accident history data necessary to 

do a thorough analysis of the premise 

underlying the Agency’s proposal. One 

commenter stated the example that in 

the year following MSHA’s increase in 

penalties in 2003, the number of 

citations actually increased by 

approximately 10%, from 110,038 to 

121,225, and that that trend continued 

in 2005, when the number of citations 

again increased to 128,225. MSHA used 

2005 assessed violation data as the 

baseline for its calculations of the 


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impact of both the proposed and final 

rules. The Agency has placed this 2005 

violation data in the rulemaking record. 

Although some commenters stated 

that increasing penalties will not result 

in increased compliance by operators, 

MSHA’s experience shows that 

penalties are an important tool in 

reducing fatalities, injuries, illnesses, 

and violations. The Supreme Court 

recognized that civil penalties provide a 

‘‘deterrence’’ that necessarily infrequent 

inspections cannot generate. National 

Independent Coal Operators’ Ass’n v. 

Kleppe, 423 U.S. 388, 401 (1976) 

(speaking of the Federal Coal Mine 

Health and Safety Act of 1969 (Coal 

Act)). 

The Agency recognizes that civil 

penalties alone may not significantly 

affect compliance with the Mine Act 

and MSHA’s safety and health standards 

and regulations or reduce the number of 

mining accidents and injuries. The 

reductions in accidents and injuries that 

have been achieved since the civil 

penalty regulation was originally 

implemented are the result of a 

combination of factors such as stronger 

enforcement, changes in mining 

technology, improved training, accident 

reduction initiatives, compliance 

assistance activities, better safety and 

health programs and more attention to 

them on the part of mine management 

and miners, and the continued issuance 

of citations and orders and related civil 

penalties. 

In addition, the Agency recognizes 

that the citations and orders are issued 

to induce miner operators to correct 

hazardous conditions thus reducing 

miners’ exposure. Experience and data 

show that far greater resources are 

associated with the correction of 

hazardous conditions than payment of a 

civil penalty. Correcting the hazardous 

condition may require an interruption 

in production or other scheduled 

activities, necessitating change in 

personnel and equipment. 

Nonetheless, civil penalties have 

contributed to improvements in 

fatalities and accident and injury rates 

in the mining industry. MSHA reviewed 

the Agency’s accident and injury 

statistics for metal and nonmetal mines 

from 1973 to 2005. Since 1977, the year 

that the civil penalty sanction was 

applied to metal and nonmetal mining 

operations, the incidence rate for fatal 

injuries declined, and the incidence rate 

for the total of fatal injuries, non-fatal 

days lost injuries, and no days lost 

injuries also declined. 

In October 1977, when Congress 

discussed adopting mandatory civil 

penalties for metal and nonmetal mines 

under the Mine Act, the Senate 

Committee on Human Resources 

(Committee) discussed the relative 

improvements in rates of fatal and 

serious non-fatal occurrences in the coal 

industry, where civil penalties had been 

mandatory since 1970, versus the noncoal segment of the industry, where 

there had been no provision for civil 

penalties, mandatory or permissive. 

Comparing the fatal and disabling injury 

rates between coal mines and metal and 

nonmetal mines for the years 1966 

through 1976, the Committee found that 

the comparison: 

suggests clearly that even if the civil penalty 

system under the Coal Act has not been 

totally effective in implementation, the 

presence of the civil penalty sanction has 

resulted in substantial improvements which 

are not noted in the non-coal segment of the 

industry under the Metal Act. 

S. Rep. No. 95–181, at 41 (1977). 

MSHA’s approach under this final 

rule is consistent with the intent of the 

drafters of the Mine Act. One of the 

goals of revising the civil penalty 

regulations in this final rule is to place 

more emphasis on the most severe 

violations, such as those contributing to 

accidents and injuries, and the most 

severe violators, such as those operators 

who exhibit high levels of negligence. 

MSHA has achieved this goal by 

revising the point tables for Negligence 

and Gravity-Severity and -Likelihood, so 

that the more severe violations will 

receive civil penalties at levels more 

likely to induce the operator’s 

compliance. 

Penalties are one of many tools that 

Congress approved to ensure ‘‘a safe and 

healthful’’ workplace for miners. 

Congress’s intent was that civil 

penalties under the Mine Act be used to 

‘‘induce those officials responsible for 

the operation of a mine to comply with 

the Act and its standards.’’ S. Rep. No. 

95–181, at 41. Civil penalties were 

singled out by the sponsors of the Mine 

Act as ‘‘the mechanism for encouraging 

operator compliance with safety and 

health standards.’’ 123 Cong. Rec. 4388 

(1977) (Feb. 11, 1977) (statement of Sen. 

Williams). 

MSHA has structured the final rule so 

that increased penalties will induce 

operators to be more proactive in their 

approach to miner safety and health and 

will lead to overall safety and health 

improvements. Increasing penalties is 

consistent with Congress’s intent that 

penalties: 

be of an amount which is sufficient to make 

it more economical for an operator to comply 

with the Act’s requirements than it is to pay 

the penalties assessed and continue to 

operate while not in compliance. 

S. Rep. No. 95–181, at 41. 

In response to comments that stated 

that the proposed penalty increases 

were unnecessary because injuries and 

fatalities have steadily declined since 

1990, MSHA notes that the Mine Act 

has resulted in significant 

improvements in the health and safety 

of miners. Nevertheless, a review of 

MSHA’s historical data shows a high 

number of fatal accidents in 2006—47 

fatalities in coal mines and 25 fatalities 

in metal and nonmetal mines—and a 

rising number of violations in the past 

three years, including a rising number of 

violations of the same standard and a 

rise in the number of serious violations. 

Several commenters supported 

increased penalties, but stated that the 

proposed increases were not sufficiently 

high to provide operators with enough 

compliance incentive. In support of this 

statement, these commenters provided 

the example that a violation that 

receives 50 points under the existing 

regulations would only receive the 

minimum penalty under the penalty 

conversion table in the proposed rule. 

MSHA notes that points assigned in the 

penalty tables for each of the statutory 

criteria have been changed in the 

proposed rule and, that this change 

prevents accurate comparisons between 

points assigned in the penalty tables 

under the existing regulation with the 

penalty conversion table in the 

proposed rule. Using the commenters’

example, the 774 violations that 

received 50 penalty points under the 

penalty tables of the existing regulation 

received an average penalty of $636 

(including a 30% discount for good 

faith, where applicable). These same 

violations would receive an average of 

93 penalty points under the penalty 

tables in the proposed rule and would 

receive an average penalty of $2,134 

(including a 10% discount for good 

faith, where applicable). 

Several commenters stated that the 

proposed penalty increases were too 

high. These commenters provided 

MSHA with specific examples 

comparing penalties under the existing 

rule with projected penalties under the 

proposed rule. MSHA is impressed with 

the specific examples they submitted 

which included thoughtful analysis and 

attention to detail. MSHA has analyzed 

these examples using its data for 2005 

assessed violations. MSHA notes that its 

data is comprised of all violations that 

were assessed in 2005. Some 

commenters may have submitted 

specific examples that relied on the 

issuance date rather than the assessment 

date of the violation. MSHA’s analysis 

shows the following for some of the 

specific examples submitted by 

commenters. 


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1. Jim Walter Resources, Inc., (JWR) 

submitted summary estimates for Mine 

Number 4 and Mine Number 7. 

Regarding Mine Number 4, JWR stated 

that total penalties for 2005 were 

$97,288 and projected that penalties 

under the proposal would be $421,521, 

an increase of 333%. MSHA’s analysis 

shows that total penalties assessed in 

2005 for this mine were $128,540 and 

that the amount under the proposed rule 

would be $421,128, an increase of 

228%. Under the final rule, the total 

penalties would be $344,423 or an 

increase of 168%. 

Regarding Mine Number 7, JWR stated 

that total penalties for 2005 were 

$55,131 and projected that penalties 

under the proposal would be $286,389, 

representing an increase of 419%. 

MSHA’s analysis shows that total 

penalties assessed in 2005 for this mine 

were $65,775 and that the amount under 

the proposed rule would be $378,907, 

an increase of 476%. Under the final 

rule, the total penalties would be 

$333,559 which is an increase of 407%. 

MSHA notes that the increase in 

penalties for Mine Number 7 as 

compared to Mine Number 4 is 

predominantly attributable to the 

difference in the number of penalty 

points for violations per inspection day. 

In addition, as stated above, MSHA’s 

analysis is based on violations that were 

assessed in 2005 even though the 

violation may have been issued in a 

different year. 

2. Peabody Energy (Peabody) 

provided projections of penalties for 

‘‘typical’’ § 75.400 violations stating that 

if the single penalty is eliminated and 

penalties are solely based on points, 

large operators will be at an extreme 

disadvantage due to their sheer size and 

production. In each example, the size of 

the mine is over two million tons, the 

size of controlling entity is over 10 

million tons, the history consists of a 

VPID exceeding 2.1 and more than 20 

violations of the same standard, and the 

gravity consists of one person 

potentially affected. The first example 

involves a non-significant and 

substantial (non-S&S) violation: 

moderate negligence, ‘‘unlikely’’

occurrence, and ‘‘lost work days or 

restricted duty.’’ Peabody projected that 

under the proposed rule this violation 

would incur 106 penalty points for an 

initial proposed penalty of $4,440, 

which would be offset by a $444 

reduction for timely abatement, 

resulting in a total penalty of $3,996. 

The second example involves an S&S 

violation: moderate negligence, 

‘‘reasonably likely’’ to occur, and ‘‘lost 

work days or restricted duty.’’ Peabody 

projected that under the proposed rule 

this violation would incur 126 penalty 

points for an initial proposed penalty of 

$21,993, which would be offset by a 

$2,199 reduction for timely abatement, 

resulting in a total penalty of $19,794. 

The third example involves an S&S 

violation: High negligence, ‘‘reasonably 

likely’’ to occur, and ‘‘lost work days or 

restricted duty.’’ Peabody projected that 

under the proposed rule this violation 

would incur 141 penalty points for an 

initial proposed penalty of $60,000 

which would be offset by a $6,000 

reduction for timely abatement, 

resulting in a total penalty of $54,000. 

MSHA reviewed its 2005 assessment 

violation data for all § 75.400 violations 

issued for Peabody’s largest mines in 

2005. MSHA calculated the average total 

penalty points and average proposed 

penalties under the existing, proposed, 

and final rules for Peabody mines that 

received maximum points for mine size. 

The results of MSHA’s analysis are 

shown in the following table. 

MSHA’s analysis shows that under 

the existing rule, the total average points 

for all non-S&S § 75.400 violations was 

43, resulting in an average proposed 

penalty of $68. MSHA’s analysis 

revealed total average points for all S&S 

§ 75.400 violations of 47, resulting in an 

average proposed penalty of $576. 

Under the proposed rule, MSHA’s 

analysis shows that the total average 

points for all non-S&S § 75.400 

violations was 87, resulting in an 

average proposed penalty of $874, 

which includes the ‘‘good faith’’

reduction. MSHA’s analysis revealed 

total average points for all S&S § 75.400 

violations of 106, resulting in an average 

proposed penalty was $3,996, which 

includes the ‘‘good faith’’ reduction. 

Under the final rule, MSHA’s analysis 

shows that the total average points for 

all non-S&S § 75.400 violations was 82, 

resulting in an average proposed penalty 

of $586. MSHA’s analysis revealed total 

average points for all S&S § 75.400 

violations of 102, resulting in an average 

proposed penalty of $2,902, which 

includes the ‘‘good faith’’ reduction. 


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Peabody also submitted a fourth 

example showing the ‘‘cheapest typical 

non-S&S’’ violation. In this example, the 

size of mine is over two million tons, 

the size of controlling entity is over 10 

million tons, the history consists of a 

VPID exceeding 2.1 and five or fewer 

repeat violations in the last 15 months, 

moderate negligence, an ‘‘unlikely’’

occurrence, a severity of ‘‘lost work days 

or restricted duty,’’ and one person 

potentially affected. Peabody projected 

that, under the proposed rule, such a 

violation would incur 86 penalty points 

for an initial proposed penalty of $897 

which would be offset by a $90 

reduction for timely abatement, 

resulting in a total penalty of $807. 

MSHA’s analysis of an average non-S&S 

violation for Peabody mines with 

maximum points for mine size shows 

that under the existing rule, the average 

proposed penalty was $68, under the 

proposed rule, the average proposed 

penalty was $874, and under the final 

rule, the average proposed penalty was 

$586. 

3. Pennsylvania Coal Association 

stated that the removal of the single 

penalty assessment will greatly increase 

penalties for non-S&S violations that 

present no real degree of hazard. 

Pennsylvania Coal gave the example 

that under the proposal, a section 

104(a), non-S&S violation with 

moderate negligence, 1.1 violations per 

inspection day, production over two 

million tons per year, an unlikely 

likelihood of occurrence, a severity of 

lost work days, and two persons 

potentially affected would receive a 

penalty of $512, more than 8 times the 

$60 single penalty under the existing 

rule. Under MSHA’s analysis, assuming 

three points for size of the controlling 

entity, the penalty for this violation 

would be $212 under the proposed rule, 

or $190 with the ‘‘good faith’’ reduction, 

an increase of 216%. Under the final 

rule, assuming five points for size of the 

controlling entity, the penalty for this 

violation would be $196 or $176 with 

the ‘‘good faith’’ reduction. 

Pennsylvania Coal further stated that 

it believed that penalties under the 

proposal would result in an increase of 

10 times over the existing penalties for 

commonly cited violations. 

Pennsylvania Coal provided the 

example that if the severity of the injury 

in the foregoing violation were 

permanently disabling and there was a 

‘‘repeat’’ history of 10 points, the 

penalty would increase to $1,140. Under 

MSHA’s analysis, assuming three points 

for size of the controlling entity, the 

penalty for this violation would be $473 

under the proposed rule, or $425 with 

the ‘‘good faith’’ reduction, an increase 

of 7 times over the existing penalty. 

Under the final rule, assuming five 

points for size of the controlling entity, 

the penalty would be $651 or $586 with 

the ‘‘good faith’’ reduction. 

After analyzing the commenters’

projected penalties, MSHA agrees that 

the penalty increases can be substantial 

under the proposed rule; however, in 

many instances, the increases are not as 

great as commenters projected. This is 

due to a number of reasons including 

data based on issued rather than 

assessed violations, and use of 

hypothetical violations with sometimes 

incomplete data. The Agency believes 

that the penalty increases in the final 

rule are consistent with Congressional 

intent and are at an appropriate level to 

increase operator compliance with the 

Mine Act and MSHA’s safety and health 

standards and regulations. 

MSHA discussed the regulatory 

impact analysis in support of the 

proposed rule in Section IV of the 

preamble to the proposed rule. The 

analysis of costs contained three 

inadvertent errors: (1) MSHA used the 

wrong employment size for a few 

independent contractor violations; (2) 

there was a small error in the formula 

for calculating the history for repeat 

violations; and (3) violation history 

penalty points were improperly 

assigned to operators with fewer than 10 

violations over the previous 15-month 

period. The net effect of these errors was 

to underestimate the impact of costs of 

the proposal by about 2%. These errors 

have been corrected in MSHA’s analysis 

of the final rule. A more detailed 

explanation is provided later in Section 

III (Executive Order 12866) of this 

preamble, and any data referenced by 

MSHA in support of the proposed rule 

reflect the corrections. 

Some commenters expressed concern 

that MSHA does not use the Small 

Business Administration (SBA) 

definition of small business, creating an 

unfair trade disadvantage for crushed 

stone, sand, and gravel mines, which 

tend to be smaller mines. In analyzing 

the impact of a rule on small entities, 

MSHA must use the SBA definition for 

a small entity or, after consultation with 

the SBA Office of Advocacy, establish 

an alternative definition for the mining 

industry by publishing that definition in 

the Federal Register for notice and 

comment. MSHA has not established 

such an alternative definition and hence 

is required to use the SBA definition. 

The SBA defines a small entity in the 

mining industry as an establishment 

with 500 or fewer employees. 

MSHA has also examined the impact 

of agency rules on a subset of mines 

with 500 or fewer employees, i.e., those 

with fewer than 20 employees, which 

MSHA and the mining community 

traditionally have referred to as ‘‘small 

mines.’’ These small mines differ from 

larger mines not only in the number of 

employees, but also in economies of 

scale in material produced, in the type 

and amount of production equipment, 

and in supply inventory. Because of 

these factors, their costs of complying 

with MSHA’s rules and the impact of 

the agency’s rules on them also will 

tend to be different. It is for this reason 

that ‘‘small mines,’’ traditionally 

defined by MSHA as those employing 

fewer than 20 workers, are of special 

concern to MSHA. In addition, for this 

final rule, MSHA has examined the cost 

on mines with five or fewer employees 

to ensure that they are not significantly 

and adversely impacted by the final 

rule. 

In the final rule, MSHA has carefully 

evaluated all of the comments and 

concerns. The Agency has revised some 

of the proposed provisions to reflect 

many of the commenters’ concerns. 

MSHA’s primary objective continues to 

be to develop and issue a final rule 

which promotes operator compliance 

with the Mine Act and MSHA’s 

standards and regulations and thereby 

reduces violations and injuries, illnesses 

and fatalities in mines. By establishing 

more serious consequences for 

noncompliance with the Mine Act and 

MSHA’s safety and health standards and 

regulations, the highest penalties under 

this final rule are directed towards those 

mine operators who continually allow 

hazardous conditions to exist. The final 

rule aims to direct mine operators who 

violate the Mine Act and MSHA’s safety 

and health standards and regulations 

toward a more proactive approach to 

miner safety and health. 

B. Section-by-Section Analysis 

Scope and Purpose (§ 100.1) 

Final § 100.1, like the existing rule, 

sets forth the scope and purpose of the 

final rule. It provides the criteria and 

procedures that MSHA uses to propose 

civil penalties under sections 105 and 

110 of the Mine Act. Final § 100.1, like 

the existing rule, provides that the 

purpose of this rule is to: establish a fair 

and equitable procedure for the 

application of the statutory criteria in 

determining proposed penalties for 

violations; maximize the incentives for 

mine operators to prevent and correct 

hazardous conditions; and assure the 

prompt and efficient processing and 

collection of penalties. 

Some commenters suggested that the 

final rule should be limited to the 

specific penalties mandated by the 


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MINER Act and that MSHA either 

should withdraw the proposed rule or 

delay promulgating a final rule and 

appoint an advisory committee to 

evaluate other aspects of the proposed 

rule before moving forward. In addition, 

some commenters expressed the 

opinion that Congress’s silence in the 

MINER Act with respect to civil 

penalties other than those specifically 

mentioned indicated that Congress 

generally was satisfied with MSHA’s 

existing penalty regulations. These 

commenters stated that MSHA should 

follow the clear and unmistakable 

direction provided by Congress and 

limit the final rule to only those penalty 

provisions included in the MINER Act. 

Other commenters opposed the 

appointment of an advisory committee 

to review civil penalties stating that it 

would be only a delay tactic. 

Although Congress mandated only 

certain penalties under the MINER Act, 

it did so by amending the Mine Act and 

providing the Secretary with additional 

tools ‘‘to improve the safety of mines 

and mining.’’ PL 109–236, 120 Stat. 493 

(June 15, 2006). MSHA has determined 

that there would be no benefit for miner 

safety and health by convening an 

advisory committee. The final rule is 

consistent with both the Mine Act and 

MINER Act’s goals to improve miner 

safety and health through the use of 

effective civil penalties. In response to 

comments, and consistent with the 

MINER Act, under the final rule, 

operators who exhibit a lack of 

commitment to miner safety and health 

will receive the greatest increase in 

penalties. 

Some commenters opposed the 

proposed rule’s across-the-board penalty 

increases, stating that this was a onesize-fits-all approach that unfairly 

penalized operators with good safety 

records. Specifically, a number of sand 

and gravel operators commented that 

the proposed increases should be 

limited to coal mines because disasters 

in coal mines generated changes in the 

MINER Act. These commenters further 

stated that coal mines pose greater 

health and safety hazards to miners and 

that such mines experience a higher 

number of violations. Some small sand 

and gravel operations further 

commented that the proposed increases 

were excessively high and would put 

them out of business. These commenters 

provided no specific data in support of 

their conclusion. Under the final rule, 

MSHA estimates that metal and 

nonmetal operators, which include 

small sand and gravel operators, with 

one to five employees would average a 

yearly increase of $149 per mine, 

compared to $213 for those with one to 

20 employees. 

Under the final rule, like the existing 

rule, the size of the mining operation 

and the effect of a penalty on an 

operator’s ability to continue in 

business are two of the statutory factors 

taken into consideration in determining 

penalties. MSHA’s goal for this final 

rule is that all mine operators, 

consistent with the statutory purpose, 

will be in compliance with the Mine Act 

and Agency safety and health standards 

and regulations. In addition, consistent 

with the MINER Act, the Agency 

projects that operators who are the 

worst safety and health offenders will 

experience the largest penalty increases 

under the final rule. 

One commenter expressed concern 

that the proposed rule did not provide 

equitable procedures for the application 

of the statutory criteria in determining 

proposed penalties because the 

proposed rule treated small mines 

differently from large mines and 

because it treated coal mines differently 

from metal and non-metal mines. MSHA 

does not agree that its application of the 

mine size penalty criteria is inequitable. 

Under the final rule, like the existing 

rule, the points and the penalties 

increase as the size of the operator or its 

parent company grows. In doing so, 

MSHA is assuring optimal consistency 

in accordance with Congressional intent 

in applying the statutory criteria 

pertaining to the size of the operator’s 

business. 

Historically, MSHA has treated coal 

mining operations differently from 

metal and nonmetal mining operations 

when determining size for purposes of 

assigning civil penalty points. This 

historical distinction was based on both 

Agency experience and mining industry 

conditions. MSHA has found that 

measuring the size of coal mining 

operations by tonnage produced is a 

reasonable indicator of the size of the 

business for coal operations. Tonnage 

produced, however, is not usually a 

useful indicator of size for metal and 

nonmetal mining operations because of 

the vast differences in commodities 

mined and methods of mining within 

that segment of the mining industry. In 

some instances, large volumes of 

material are mined for only a few 

ounces of a marketable commodity; in 

others, nearly one hundred percent of 

the mined material is marketable. In 

addition, the costs of production and 

the market prices may vary markedly 

within the metal and nonmetal industry. 

Thus, an annual tonnage measurement 

of metal and nonmetal operations would 

not enable MSHA to fairly evaluate the 

economic impact of the proposed 

penalty on each operator. MSHA’s 

experience is that tonnage produced has 

proven to be effective for measuring the 

size of coal mining operations and 

annual hours worked has proven to be 

effective for measuring the size of metal 

and nonmetal operations. 

No substantive changes to proposed 

§ 100.1 were made in the final rule. 

Final § 100.1 adopts the language in the 

proposed rule. 

Applicability (§ 100.2) 

Final § 100.2, like the existing rule, 

sets forth the applicability of the final 

rule and provides that the criteria and 

procedures in this part are applicable to 

all proposed assessments of civil 

penalties for violations of the Mine Act 

and the standards and regulations 

promulgated pursuant to the Mine Act, 

as amended. Final § 100.2, like the 

existing rule, further provides that 

MSHA shall review each citation and 

order and shall make proposed 

assessments of civil penalties. 

MSHA received no significant 

comments regarding proposed § 100.2. 

Final § 100.2 adopts the language in the 

proposed rule. 

Determination of Penalty; Regular 

Assessment (§ 100.3) 

(a) General 

This section of the final rule 

addresses the determination of a penalty 

amount under the regular assessment 

provision. Final § 100.3(a)(1) is derived 

from existing § 100.3(a), and provides 

the criteria for determining penalty 

assessments. The final rule, like the 

proposal, makes several nonsubstantive, clarifying changes. It 

divides existing § 100.3(a) into two 

paragraphs designated as § 100.3(a)(1) 

and (a)(2). 

Final § 100.3(a)(1), like the proposed 

rule, provides that the operator of any 

mine in which a violation of a 

mandatory health or safety standard 

occurs or who violates any other 

provision of the Mine Act shall be 

assessed a civil penalty of not more than 

$60,000. It further provides that each 

occurrence of a violation of a mandatory 

safety or health standard may constitute 

a separate offense. In addition, it 

provides that the amount of the 

proposed civil penalty shall be based on 

the criteria set forth in sections 105(b) 

and 110(i) of the Mine Act. These 

criteria are: 

(1) The appropriateness of the penalty 

to the size of the business of the 

operator charged; 

(2) The operator’s history of previous 

violations; 

(3) Whether the operator was 

negligent; 


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(4) The gravity of the violation; 

(5) The demonstrated good faith of the 

operator charged in attempting to 

achieve rapid compliance after 

notification of a violation; and 

(6) The effect of the penalty on the 

operator’s ability to continue in 

business. 

MSHA received no comments on 

proposed § 100.3(a)(1) and final 

§ 100.3(a)(1) adopts the language in the 

proposed rule. 

Final § 100.3(a)(2), substantively 

unchanged from the existing rule, sets 

forth the process for determining a 

penalty under the regular assessment 

provision. Under paragraph (a)(2), a 

regular assessment is determined by 

first assigning the number of penalty 

points to the violation by using the 

criteria and tables set forth in this 

section. The total number of penalty 

points is then converted into a dollar 

amount under the penalty conversion 

table in paragraph (g) of this section. If 

applicable, the amount of the penalty 

will be adjusted for good faith as 

provided under paragraph (f) of this 

section, and/or the operator’s ability to 

continue in business as provided under 

paragraph (g) of this section. 

Several commenters suggested that 

MSHA replace the proposed point 

system with alternative methods for 

computing penalties. For example, one 

commenter suggested that MSHA 

consider an alternative to the regular 

assessment process in which each 

violation would have a designated 

baseline penalty. Under this suggested 

approach, factors such as an operator’s 

history and negligence, and the gravity 

of the violation would be used to 

increase the penalty, but the baseline 

penalty would not be reduced because 

of an operator’s size, good faith in 

abatement, or ability to continue in 

business. MSHA has evaluated this 

suggested alternative and determined 

that it is not in accord with the intent 

of the drafters of the Mine Act because 

it does not appropriately consider the 

statutory factors when determining 

penalties. Therefore, final § 100.3(a)(2) 

retains the proposed regular assessment 

structure and language. 

(b) Appropriateness of the Penalty to the 

Size of the Operator’s Business 

Final § 100.3(b) is derived from 

existing § 100.3(b). Like the existing 

rule, final § 100.3(b) continues to 

provide that the appropriateness of the 

penalty to the size of the operator’s 

business is calculated by using both the 

size of the mine and the size of the 

controlling entity of the mine. In 

addition, final paragraph (b) continues 

to provide that the terms ‘‘annual 

tonnage’’ and ‘‘annual hours worked’’

mean coal produced and hours worked, 

respectively, in the previous calendar 

year. It also continues to provide that 

where a full year of data is not available, 

the coal produced or hours worked is 

prorated on an annual basis. Finally, it 

increases the maximum number of 

points that can be accrued under this 

criterion, from 15 points under the 

existing rule to 25 points. 

MSHA proposed editorial, clarifying 

changes to this provision. MSHA 

proposed adding the statement that the 

size of coal mines and their controlling 

entities is measured by coal production, 

the size of metal and nonmetal mines 

and their controlling entities is 

measured by hours worked, and the size 

of independent contractors is measured 

by the total hours worked at all mines. 

No comments were received regarding 

this proposed clarification. Therefore, 

final § 100.3(b) adopts the additional 

statement as proposed. 

Although final § 100.3(b) retains the 

proposed 25 maximum number of 

points under the size criterion, 

allocation of points based on the size of 

coal mines, metal and nonmetal mines, 

controlling entities, and independent 

contractors is different from the 

proposed rule. Under final § 100.3(b), 

the maximum number of points based 

on the size of coal mines and metal and 

nonmetal mines is reduced from the 

proposed 20 points to 15 points, and the 

maximum number of points for 

controlling entities of coal mines and 

metal and nonmetal mines is increased 

from the proposed five points to 10 

points. Accordingly, the total maximum 

number of points for the size of a coal 

or metal or nonmetal mining operation 

is 25. In addition, the maximum number 

of points for independent contractors is 

increased from 20 to 25 points. 

MSHA received numerous comments 

both in support of and against point 

increases based on mine size. 

Commenters opposed to giving 

consideration to size expressed concern 

that, under the proposed rule, nearly a 

quarter of all coal mines and more than 

half of all metal and nonmetal mines 

were receiving fewer points merely 

because of size even though many 

health and safety violations are cited at 

such smaller operations. In addition, 

commenters expressed concern that 

larger operations would receive 

excessive points under the proposed 

rule even though larger mines typically 

have more comprehensive safety 

programs than smaller mines. This final 

rule is responsive to many of these 

concerns. 

With respect to comments pertaining 

to the proposed increase in points for 

mine size, the Mine Act specifically 

requires that the size of an operator’s 

business be considered in determining 

the amount of a penalty. In response to 

comments, however, MSHA has made 

several changes to the mine size point 

tables in the final rule. First, MSHA 

created more categories for the annual 

tonnage range for smaller coal mines 

and the annual hours worked range for 

smaller metal and nonmetal mines. 

In addition, MSHA raised the penalty 

points for the smallest coal mine size 

from zero points to one point. This is 

because coal mines in the smallest mine 

size, according to annual tonnage, 

include preparation plants that report 

no production, although many employ 

20 or more workers. Therefore, MSHA 

determined that it would further the 

purpose of this rulemaking to increase 

points in this size range. As a result of 

these changes, smaller coal mines 

would tend to receive more size penalty 

points on average under the final rule as 

compared with the proposed rule. For 

example, a small coal mine with coal 

production between 0 and 7,500 tons 

will receive one point under the final 

rule as opposed to 0 points under the 

proposed rule. 

Under final § 100.3(b), MSHA has 

increased the maximum number of 

points from 10 under the existing rule 

to 15 for the largest coal operations and 

metal and nonmetal operations. MSHA 

proposed increased points for larger 

operations because in order to provide 

an equal deterrent, the penalties must be 

higher for larger mines (with potentially 

higher revenue) in order to provide an 

equal deterrent. In addition, the Agency 

anticipated that higher penalties would 

be needed to help induce these 

operations, with more complex 

management structures, to take notice of 

and correct safety and health violations. 

Accordingly, final § 100.3(b) increases 

the maximum number of points from 10 

under the existing rule to 15 (as 

opposed to the 20 points in the 

proposal). 

With respect to independent 

contractors, MSHA proposed to increase 

the maximum number of penalty points 

from 10 to 20 to assure that the amount 

of the penalty is an appropriate 

economic inducement of future 

compliance by the independent 

contractor. This was accomplished by 

doubling the number of penalty points 

for any given number of annual hours 

worked. MSHA has reviewed the 

violations assessed in 2005 pertaining to 

independent contractors and 

determined that the maximum number 

of points for independent contractor 

size should be raised from 20 in the 

proposed rule to 25 in the final rule. 


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Under the final rule, all mine operators 

are subject to a maximum of 25 points 

for size. MSHA reviewed the violations 

that were assessed in 2005 and found 

that for most employment sizes, 

operator penalties were at least 50% 

higher, and in some cases more than 

100% higher, than the penalties 

received by independent contractors. 

MSHA has concluded, from its review 

of penalties under the proposed rule, 

that some significant part of the 

discrepancy between operator and 

independent contractor penalties was 

due to the fact that operators received a 

maximum of 25 penalty points for size 

while independent contractors received 

a maximum of 20 penalty points for 

size. Accordingly, MSHA has increased 

the maximum size penalty points for 

independent contractors to 25 points. 

In addition, as was done for operators, 

MSHA has created more categories 

capturing the annual hours worked 

range for smaller independent 

contractors. As a result, smaller 

independent contractors would tend to 

receive more penalty points for size on 

average under the final rule than under 

the proposed rule. For example, an 

independent contractor with 5,001 to 

10,000 annual hours worked would 

receive two penalty points for size 

under the final rule as compared to zero 

penalty points for size under the 

proposed rule. 

In reallocating the points for size for 

independent contractors, MSHA 

evaluated the violations that were 

assessed in 2005 and compared the 

number of violations per contractor with 

the given contractor size points under 

the existing rule, proposed rule, and 

final rule. MSHA’s primary concern was 

to ensure that the average penalties per 

violation for independent contractors of 

any given employment size would be 

similar to the average penalties for coal 

and metal and nonmetal operators of a 

similar employment size. 

In addition, MSHA received 

comments both in support of and 

against the Agency’s request for 

comments pertaining to whether greater 

weight should be placed on the size of 

controlling entities. Proposed § 100.3(b) 

retained the existing maximum of five 

points for controlling entities; however, 

MSHA specifically requested comments 

on whether, in considering the size of 

the operator, greater weight should be 

placed on the size of the controlling 

entity. Some commenters supported 

placing greater weight on controlling 

entities so that smaller individual mines 

that are owned and controlled by larger 

entities would receive higher penalties. 

Those commenters stated, however, that 

for purposes of assessing a sufficiently 

high penalty that would get the 

attention of the controlling entity, an 

accurate measure of the controlling 

entity’s size should be revenues, and not 

annual tonnage or hours worked, 

because many controlling entities could 

be involved in a number of industries 

and businesses that are not miningrelated. Other commenters who 

supported placing greater weight on 

controlling entities questioned whether 

it would be a workable provision. Those 

commenters were concerned that 

because the mining industry is so fluid, 

tracking such information may be all but 

impossible, overly burdensome, and too 

labor intensive, and therefore beyond 

the agency’s ability to administer. 

Some commenters opposed placing 

greater weight on the controlling entity. 

Some of those commenters stated that 

the Mine Act only specifies the size of 

the operator as a penalty criterion, and 

such specification implies that the size 

of some other entity in the corporate 

chain should not be a consideration in 

calculating the size of the penalty. Other 

commenters opposed placing greater 

weight on the controlling entity because 

it would create a financial disadvantage 

for small operations owned by larger 

companies and thereby promote an 

adverse competitive environment in 

local markets. 

MSHA agrees with comments in 

support of placing greater weight on 

controlling entities and accordingly has 

increased the maximum controller size 

penalty points from five to 10. Congress 

specifically required that the size not 

only of the particular mine involved in 

the violation, but the size of the 

operator’s ‘‘business’’ is to be taken into 

account. MSHA has historically 

interpreted this statutory provision to 

include both the size of the mine and 

the size of the entity that controls the 

mine. Business judgments affecting the 

health and safety of miners are made at 

various levels of an organization’s 

structure. Penalties are intended to 

encourage management at all levels to 

respond positively to the health and 

safety concerns affecting miners. In 

addition, Congress expressed its intent 

to place the responsibility for 

compliance with the Mine Act on those 

who control or supervise the operation 

of mines as well as on those who 

operate them. S. Rep. No. 95–181, at 40–

41. Upper-level management decisions 

such as those affecting capital 

expenditures, the basic nature and 

scope of a corporate safety and health 

program, the hiring of top mine 

management officials, and other policy 

matters have a profound effect upon 

safety and health conditions at 

individual mines. Thus, penalties 

should be increased for controlling 

entities in order to influence all levels 

of decisionmaking. Further, the Mine 

Act specifically requires consideration 

be given to the size of the operator’s 

business. MSHA reallocated the points 

for controlling entities and coal and 

metal and nonmetal mine size to 

achieve a more equitable distribution of 

points. 

MSHA does not think that the specific 

comment that opposed placing greater 

weight on the controlling entity because 

it would create a financial disadvantage 

for small operations owned by larger 

companies is accurate. The comment 

assumes that fines assessed against 

smaller operations owned by larger 

entities are not reflected in the overall 

profit margin of the controlling entity. 

In addition, for the same reasons 

stated in the above discussion 

concerning measuring the size of coal 

mines and metal and nonmetal mines, 

MSHA will continue to measure the size 

of controlling entities under this final 

rule as it does under the existing rule. 

The size of a controlling entity for coal 

mines is measured by annual tonnage 

and the size of a controlling entity for 

metal and nonmetal mines is measured 

by annual hours worked. MSHA intends 

to continue its existing practice of 

considering only the mining operations 

in which a controlling entity is involved 

in when determining the size of the 

controlling entity. This method has been 

effective as a proxy for revenue and the 

data are readily available to MSHA 

through the existing reporting 

requirements under 30 CFR part 50. 

Final § 100.3(b) modifies the points 

for size from the proposed rule. Relative 

to the existing rule, final § 100.3(b) 

increases the points for the size 

according to the following tables. 


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(c) History of Previous Violations 

Final § 100.3(c) is derived from 

existing § 100.3(c). Final § 100.3(c), like 

the proposed rule, provides that an 

operator’s history of previous violations 

is based on both the total number of 

violations and the number of repeat 

violations of the same citable provision 

of a standard in a preceding 15-month 

period. Final § 100.3(c) clarifies that the 

repeat aspect of the history criterion in 

paragraph (c)(2) applies to operators 

only after an operator has received 10 

violations, and to independent 

contractor operators only after an 

independent contractor has received 6 

violations. In addition, only assessed 

violations that have been paid or finally 

adjudicated, or have become final orders 

of the Federal Mine Safety and Health 

Review Commission (Commission), will 

be included in determining an 

operator’s history. 

Proposed § 100.3(c) clarified the 

existing provision by adding the phrase 

‘‘or have become final orders of the 

Commission’’ in the second sentence of 

this paragraph to reflect MSHA’s intent 

that only violations which have become 

final be included in an operator’s 

history. In addition, the proposal made 

several substantive changes to existing 

§ 100.3(c). An operator’s history of 

violations under existing § 100.3(c) was 

based solely on the overall number of 

violations cited against an operator 

during a preceding 24-month period. 

Under the proposal, the period of time 

would be shortened to 15 months and 

an operator’s history of violations would 

include two components: the total 

number of violations and the number of 

repeat violations in that 15-month 

period. 

MSHA received numerous comments 

with respect to these proposed changes. 

Several commenters opposed the 15- 

month period. These commenters 

expressed concern that the proposed 15- 

month period would deprive MSHA of 

critical information about an operator’s 

past safety record, particularly for 

aggregate mining operations that are 

seasonal or intermittent, and could 

result in lower penalties, particularly for 

repeat violators. One commenter 

criticized MSHA for not publishing data 

that the Agency used to determine that 

the effect of the shorter time period 

would have a negligible effect on an 

independent contractor’s history. On the 

other hand, many commenters 

supported the shorter time period 

because it provided a more current or 


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more realistic indication of an operator’s 

compliance. 

MSHA has determined that the 

proposed 15-month period will provide 

the Agency with sufficient data to 

accurately evaluate an operator’s 

compliance record, including any trend, 

even for mining operations that are 

inspected on a less-frequent basis, e.g., 

seasonal or intermittent operations. 

MSHA reviewed violations that were 

assessed in 2005 and determined that 

because it takes approximately three 

months for a penalty assessment to 

become a final order of the Commission, 

the proposed 15-month period would 

provide the Agency with at least one 

full year of data for coal and metal and 

nonmetal operations, and for 

independent contractors. 

The shortened timeframe of 15 

months provides MSHA with a more 

recent compliance history than the 24- 

month period under the existing rule. In 

addition, MSHA believes that operators 

who violate the Mine Act and MSHA’s 

health and safety standards and 

regulations should receive penalties for 

those violations as close as practicable 

to the time the violation occurs in order 

to provide a more appropriate incentive 

for changing compliance behavior. 

For coal and metal and nonmetal 

operations, the data would be 

normalized by the amount of inspection 

time resulting in data comparable to that 

of the 24-month period under the 

existing rule. MSHA analyzed the data 

for operator violations that were 

assessed in 2005 to determine the 

impact of changing to a 15-month 

period. For coal and metal and 

nonmetal operator violations that were 

assigned history penalty points in 2005, 

and had a minimum of 10 violations 

during the 15-month period, the average 

penalty points using a preceding 24- 

month period was 7.5 per violation. 

Using a preceding 15-month period, the 

average was 7.6 penalty points per 

violation. 

For independent contractors, there is 

a negligible difference between 

calculating an independent contractor’s 

history of violations under the proposed 

rule and under the existing rule. This is 

so because it generally takes up to three 

months for a violation to become a final 

order and, therefore, the 15-month 

period provides MSHA with at least one 

full year of data from which to calculate 

violation history. MSHA reviewed 

violations that were assessed in 2005, 

which show that there were 3,844 

contractors that were issued at least one 

citation in the 24-month period from 

January 1, 2004 to December 31, 2005. 

Using the same number of months and 

the annualized calculation that is used 

to determine violation history in the 

existing rule, these contractors were 

issued an average of 2.3 violations per 

year with a median of one violation per 

year during this time frame. Using the 

15-month period without annualizing 

the number of violations as proposed, 

these same contractors were issued an 

average of 2.9 violations with a median 

of one violation during the 15-month 

period between October 1, 2004 and 

December 31, 2005. 

Several commenters expressed 

concern with the Agency’s proposal to 

use violations that have become final 

orders of the Commission, stating that 

this will encourage operators to increase 

penalty contests to avoid counting the 

violation in an operator’s history. 

MSHA included the insertion of the 

phrase ‘‘final orders of the Commission’’

to clarify the Agency’s practice, in 

existence since 1982, to use only 

violations that have become final orders 

of the Commission in determining an 

operator’s history of violations. This 

practice will continue to provide a 

measure of fairness by not including in 

an operator’s history those violations 

that are in the adjudicatory process 

which may ultimately be dismissed or 

vacated. As each penalty contest 

becomes final, however, the violation 

will be included in an operator’s history 

as of the date it becomes final. 

In consideration of all comments, 

final § 100.3(c) retains the final order 

language and shortens the period of 

time from 24 to 15 months for 

determining an operator’s history of 

violations as proposed. 

Several commenters expressed 

confusion regarding the number of 

violations that would trigger application 

of the repeat violation provision in 

proposed paragraph (c)(2). MSHA 

intends that the repeat violation 

provision in final paragraph (c)(2) 

would only apply to contractors after an 

operator has received 10 violations, and 

to independent contractor operators 

only after an independent contractor has 

received 6 violations. Therefore, final 

§ 100.3(c) includes clarifying language. 

Final § 100.3(c)(1) is a new paragraph 

derived from existing § 100.3(c). Final 

§ 100.3(c)(1), like the proposed rule, 

provides that history penalty points are 

assigned on the basis of the number of 

violations per inspection day (VPID) for 

coal operations and metal and nonmetal 

operations. Under final paragraph (c)(1), 

penalty points are not assigned to coal 

operations and metal and nonmetal 

operations that receive fewer than 10 

violations in a preceding 15-month 

period. For independent contractors, 

final § 100.3(c)(1), like the proposed 

rule, provides that penalty points are 

assigned on the basis of the total 

number of violations at all mines. 

Penalty points are not assigned to 

independent contractors with fewer 

than 6 violations. The maximum 

number of points that an operator may 

receive for this criterion is 25 points. 

Most commenters supported the 

proposed continuation of using VPID to 

calculate points for coal and metal and 

nonmetal operator’s history of 

violations, stating that VPID provides 

the truest measure of an operator’s 

compliance. Some of these commenters, 

however, requested that MSHA clarify 

its definition of an inspection day. 

These commenters stated that MSHA’s 

method of determining inspection days 

is different between coal mines and 

metal and nonmetal mines, which 

affects how points are computed. 

MSHA’s definition of VPID 

(Violations per Inspection Day) is 

calculated by taking the total number of 

assessed violations at a mine for a 

specified period that have either been 

paid or have become a final order of the 

Commission and dividing it by the total 

number of inspection days at the mine 

during the same specified period. There 

is no functional difference between a 

violation that an operator pays and a 

final order of the Commission. 

Prior to April 2005, MSHA used 

different definitions of an inspection 

day for coal and metal and nonmetal 

mines. For coal mines, each mine visit 

by each Authorized Representative of 

the Secretary (AR) was considered a 

separate inspection day. For metal and 

nonmetal mines, the total time for each 

inspection event was divided by five 

hours to determine the number of 

inspection days for that event. For both 

coal and metal and nonmetal 

operations, the number of inspection 

days were then summed for the 

specified period. In April 2005, MSHA 

began its transition to use the per-visit 

method previously used only for coal 

mines for all types of mines. MSHA 

currently calculates inspection days for 

assessment purposes by counting one 

inspection day for each AR that spends 

any on-site inspection time during any 

calendar day. Supervisory and trainee 

time is excluded from the inspection 

day calculation as are non-inspection 

activities. The same method is used for 

all coal, metal, and nonmetal mines. 

Some commenters expressed concern 

that the proposed new provision that 

history penalty points not be assigned to 

coal operations and metal and nonmetal 

operations with fewer than 10 violations 

in a preceding 15-month period 

essentially amounted to a free pass for 

small mines and constituted selective 

enforcement of the Mine Act. MSHA 


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projects that this new provision would 

work similar to existing § 100.4(b), 

which excludes from excessive history 

mines having 10 or fewer assessed 

violations in a preceding 24-month 

period. In making a decision to include 

the new provision in the proposed rule, 

MSHA considered various factors, such 

as small, seasonal, and intermittent 

operations, all of which may result in an 

operation having a low number of 

inspection days during the specified 

period. For such operations, even 

though the total number of violations 

may be low, i.e., three violations in a 

preceding 15-month period, the VPID 

could easily be greater than the highest 

VPID level, or 2.1, and the operator 

would receive the maximum number of 

25 points. To avoid the inequitable 

result of subjecting any mining 

operation with only a few violations in 

a preceding 15-month period to an 

unrealistically high VPID, MSHA 

concludes that the new provision, under 

which penalty points are not assigned to 

coal operations and metal and nonmetal 

operations with fewer than ten 

violations in a preceding 15-month 

period, is necessary. Therefore, the final 

rule includes the proposed language. 

Several commenters suggested, as an 

alternative to the proposal, that the final 

rule include a provision that history 

penalty points not be assigned to 

independent contractors with fewer 

than 10 violations in a preceding 15- 

month period. In considering this 

suggestion, MSHA reviewed its 

violation data which showed that 

between October 1, 2004 and December 

31, 2005, approximately 500 contractors 

would have received history penalty 

points for 6 or more violations during a 

15-month period. This number would 

be reduced, however, to approximately 

200 if contractors with fewer than 10 

violations were not assessed history 

points. Stated differently, under 

MSHA’s violation data, 11% of the 

independent contractor violations 

would have received history penalty 

points for six or more violations during 

a previous 15-month period. This 

percentage would be reduced, however, 

to approximately 6% if contractors with 

fewer than 10 violations were not 

assessed history points. Although there 

was strong support for the suggested 

alternative, MSHA has decided that the 

alternative does not further the purpose 

of this rulemaking and that the Agency 

will retain the proposed language that 

penalty points not be assigned to 

independent contractors with fewer 

than 6 violations in a preceding 15- 

month period. 

MSHA specifically requested 

comments as to whether the Agency 

should adopt the proposed approach for 

calculating an independent contractor’s 

history of violations by using the total 

number of assessed violations at all 

mines during a preceding 15-month 

period, or whether the Agency should 

use an annualized 2-year average as it 

does under the existing rule. Under the 

existing rule, the number of violations 

for independent contractors is based on 

an annual average of all violations over 

a two year period at all mines. MSHA 

received several comments expressing 

skepticism with the Agency’s statement 

that only a minimal increase in the 

average assessment issued to 

independent contractors would result 

by eliminating the annualized average. 

In addition, some commenters suggested 

that MSHA use VPIDs when computing 

contractor history. These commenters 

stated that contractors are required to 

have a single MSHA contractor ID 

number for nationwide operations, and 

that if working daily at multiple mine 

sites across the country, that contractor 

is likely to be inspected far more 

frequently than the average mine 

operator. These commenters concluded 

that MSHA’s proposal lacks an adequate 

foundation and results in unfair 

treatment of independent contractors. 

VPID cannot be used to calculate a 

contractor’s history of violations 

because MSHA does not record 

inspection time for contractors. As 

explained above, MSHA tracks 

contractor violations by counting total 

violations within a specified period. 

Although MSHA received some 

comments critical of the proposed 

method, it has proved to be both 

successful and practical in calculating a 

contractor’s violation history under the 

existing rule. 

The proposed rule increased the 

maximum number of points under this 

criterion from 20 under the existing 

regulation to 25 points. The final rule 

retains the proposed 25 maximum 

points; however, MSHA raised penalty 

points for independent contractors with 

8 to 50 violations during the previous 

15-month period, relative to what was 

proposed. The additional increase in 

points reflects MSHA’s desire to 

increase points for independent 

contractors so as to reduce the 

discrepancy in penalties between 

operators and independent contractors. 

Tables II–6 and II–7 compare the 

existing and final penalty point scales 

for coal and metal and nonmetal 

operators and independent contractors. 


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In the proposal, the Agency added a 

new component to the history criterion 

to target operators who allowed the 

same violations to recur, without 

correcting the underlying root cause. 

The new § 100.3(c)(2), like the proposal, 


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adds repeat violations of the same 

citable provision of a standard to an 

operator’s history of violations and 

could account for a maximum of 20 

penalty points. Under the final rule, an 

operator would not receive repeat 

penalty points until that operator had a 

minimum of 6 repeat violations in a 

preceding 15-month period. 

In response to MSHA’s request for 

comments on this proposal, many 

commenters opposed it because they 

believed that it counted some violations 

twice, once in the overall violation 

history and again in the repeat violation 

category, merely for the purpose of 

increasing penalties. In addition, some 

of these commenters stated that MSHA’s 

many broad performance-oriented 

standards are sometimes applied to 

multiple conditions that are in reality, 

quite different and that, in these 

circumstances, operators would be 

unfairly penalized for repeat violations 

which were intended to cover only the 

same or similar conditions. Also, some 

commenters expressed concern that 

increased penalties for repeat violations 

would be unfair in situations in which 

an MSHA inspector issues multiple 

citations for multiple violations of the 

same hazard. 

Although some commenters opposed 

the repeat violation provision as being 

unfair and redundant, other commenters 

supported it. MSHA believes that this 

new provision is consistent with and 

responsive to Congress’s desire to curb 

repeat violations. Reporting on the bill 

that became the Mine Act, the Senate 

Committee on Human Resources stated: 

In evaluating the history of the operator’s 

violations in assessing penalties, it is the 

intent of the Committee that repeated 

violations of the same standard, particularly 

within a matter of a few inspections, should 

result in the substantial increase in the 

amount of the penalty to be assessed. Seven 

or eight violations of the same standard 

within a period of only a few months should 

result, under the statutory criteria, in an 

assessment of a penalty several times greater 

than the penalty assessed for the first such 

violation. 

S. Rep. No. 95–181, at 43. 

MSHA analyzed violation data for the 

15-month period from January 1, 2005, 

through March 31, 2006. These data 

showed that often inspectors issued 

citations for the same safety and health 

hazards at the same operation within a 

specified period of time. From these 

data, the Agency concludes that once a 

condition is identified, these operators 

are correcting that particular condition 

without addressing the root cause of the 

problem. This new provision is aimed at 

preventing these types of occurrences 

and thereby providing a systematic 

improvement to miner safety and 

health. 

Some of the commenters who 

supported the proposed repeat violation 

provision expressed concern that it was 

too narrowly construed because it only 

counted violations of the same 

subsection of an MSHA standard. One 

commenter provided the example that 

violations for combustible materials 

under 30 CFR 75.400 should not be 

dissected into the specific nature of the 

combustible material, i.e., paper, coal 

dust, wood, etc., when considering 

repeat status. Another commenter 

suggested, as an alternative, that MSHA 

retain its discretion to use broader 

categories of violations of standards in 

determining whether a company is a 

repeat violator. 

MSHA does not agree that the repeat 

provision should include broader 

categories of violations. MSHA analyzed 

violation data for the 15-month period 

from January 1, 2005, through March 31, 

2006. MSHA’s analysis, interpreting 

‘‘same standard’’ to mean ‘‘same citable 

provision,’’ showed that 698 of the 

10,227 mines with violations had at 

least 6 violations of the same citable 

provision of a standard. Further, 99 of 

the 698 mines had more than 20 

violations of the same citable provision 

during the 15-month period. Limiting 

repeat violations to the same citable 

provision targets those operators who 

show a repeated lack of commitment to 

miner safety and health; this is precisely 

the type of behavior that the Agency 

seeks to change. 

MSHA specifically requested 

comments on whether, in determining 

penalty points for repeat violations, the 

Agency should factor in the number of 

inspection days during which the repeat 

violations were cited. 

Several commenters opposed 

factoring in the number of inspection 

days when counting violations under 

this provision. Most commenters, 

however, supported using repeat 

violations per inspection day (RPID) to 

calculate repeat violations. These 

commenters expressed concern that 

operators of large mines generally 

receive more violations than smaller 

mines solely because larger mines have 

a greater number of inspections and, 

therefore, calculating repeat violations 

using RPID would provide a level of 

fairness missing from the proposed rule. 

The application of RPID to the new 

repeat provision would account for 

increased inspector presence in large 

mines and would place all mines on a 

more equitable basis. Therefore, this 

final rule incorporates a new repeat 

violations table which applies RPID to 

the calculation for coal and metal and 

nonmetal operations. Under this table, 

repeat points apply only where there 

have been a minimum of 6 repeat 

violations. In addition, for the same 

reasons as stated previously, MSHA will 

not apply the repeat criterion until a 

coal and metal and nonmetal operator 

has received a minimum of 10 

violations within a preceding 15-month 

period. 

RPID cannot be used to calculate 

repeat violations for independent 

contractors because MSHA does not 

record inspection time for contractors. 

Therefore, the final rule, like the 

proposed rule, uses the total number of 

violations in a 15-month period for 

establishing repeat violation history for 

independent contractors. Although 

MSHA received some comments critical 

of the proposal with respect to 

independent contractors, the Agency’s 

historical method of calculating history 

for independent contractors has proved 

to be both successful and practical. 

The final rule revises the proposed 

table for repeat violations for 

independent contractors by raising the 

penalty points for contractors with 6 to 

20 repeat violations during the previous 

15-month period. Under the final rule, 

an independent contractor will receive 

the maximum 20 points for 15 or more 

repeat violations during the previous 

15-month period. These revisions reflect 

MSHA’s desire to increase points for 

independent contractors, so as to reduce 

the discrepancy in penalties between 

operators and independent contractors. 

The final rule, therefore, retains the 

proposed provision for repeat violations 

for independent contractors. 

MSHA requested comments on 

whether all violations should be used to 

calculate repeat violations, or whether 

only S&S violations should be used. 

Many commenters stated it is unfair to 

count non-S&S violations in the repeat 

violations provision because it would 

subject operators to significantly higher 

penalties for repeated violations that 

have little or nothing to do with miner 

safety and health, such as repeated 

violations of paperwork standards or 

merely technical violations. 

Other commenters, however, stated 

that MSHA should look at all violations, 

including non-S&S citations, in 

calculating penalties for repeat 

violations because even non-S&S 

violations can adversely affect miner 

safety and health. MSHA agrees. The 

final rule includes all violations, both 

S&S and non-S&S, in the calculation of 

repeat violation history. Even though 

the violations that were assessed in 

2005 show that two-thirds of all 

violations were non-S&S violations, 

non-S&S violations of technical 


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standards and low-gravity violations 

have the potential to pose a health or 

safety danger to miners. By excluding 

non-S&S violations from this provision, 

MSHA would not be taking a proactive 

approach to advancing miner safety and 

health; non-S&S violations can lead to 

S&S violations and even greater hazards 

to miners. In addition, including nonS&S violations would be consistent with 

Congress’s intent that penalties must 

provide an effective deterrent against all 

offenders, and particularly against 

offenders with records of past 

violations, regardless of whether they 

are S&S or non-S&S. 

Some commenters who opposed the 

proposed repeat violation provision 

stated that, if the provision is adopted, 

MSHA should avoid retroactive 

application of the provision by not 

including violations that occurred 

before promulgation of the final rule. 

These commenters stated that, had they 

known that violations that occurred 

prior to the final rule could be used to 

trigger significantly higher penalties, 

they would have contested those 

violations to avoid inclusion under the 

repeat violations provision. Final 

paragraph (c)(2) does not apply the 

repeat violation provision retroactively. 

The repeat violation provision under 

paragraph (c)(2), like the total number of 

violations provision under paragraph 

(c)(1), imposes higher penalties for 

violations that occur after publication of 

this final rule. MSHA, however, has the 

authority to consider violations which 

occurred before promulgation of this 

final rule as part of an operator’s history 

of violations, when determining 

penalties for violations that occur after 

issuance of the final rule. In taking this 

action, MSHA would not be impairing 

operator rights, increasing an operator’s 

liability for past violations, or imposing 

new duties with respect to violations 

that have already occurred. Rather, 

MSHA would be taking past violations 

into consideration in determining a 

penalty for a violation that occurred 

after promulgation of this final rule. 

MSHA, however, plans to pay particular 

attention to any circumstances resulting 

in an unfair penalty increase. Under 

such circumstances, MSHA may process 

the violation under the special 

assessment provision to determine a 

more appropriate penalty. 

Penalty points for the number of 

repeat violations for coal and metal and 

nonmetal operations are presented in 

Table II–8. Penalty points for the 

number of repeat violations for 

independent contractors are presented 

in Table II–9. 


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(d) Negligence 

Final § 100.3(d), derived from the 

existing rule, provides for evaluating the 

degree of negligence involved in a 

violation under five categories: No 

negligence, low negligence, moderate 

negligence, high negligence, and 

reckless disregard. Under the final rule, 

like the proposal, no negligence receives 

0 points, low negligence receives 10 

points, moderate negligence receives 20 

points, high negligence receives 35 

points, and reckless disregard receives 

50 points. Moderate negligence, high 

negligence, and reckless disregard 

receive increasingly higher penalty 

points under the final rule. Penalty 

points for these latter categories also are 

higher than those in the existing rule, 

reflecting MSHA’s intent to target 

operators who exhibit an increasing lack 

of commitment to and disregard for 

miner safety and health. 

Several commenters agreed with the 

proposed points increase for the three 

highest levels of negligence. Several 

commenters opposed the proposed 

increases as being excessive and stated 

that the degrees of negligence are 

subjective and are often evaluated 

inconsistently by MSHA inspectors. 

MSHA expanded the levels of 

negligence from three to five in 1982, in 

response to comments recommending 

more definite criteria for the assignment 

of penalty points to an operator’s 

negligence. 47 FR 22286, 22289–90 

(May 21, 1982). In so doing, MSHA 

intended that five levels of negligence 

would allow inspectors to more 

appropriately consider all of the facts 

and circumstances surrounding a 

violative condition or practice. 

Although negligence evaluations can be 

subjective, the five levels of negligence 

permit MSHA inspectors to exercise 

independent judgment based on the 

circumstances surrounding the violation 

and to make appropriate decisions with 

respect to the nature or existence of 

mitigating circumstances. Negligence is 

defined in the rule and in the negligence 

section of the ‘‘Citation and Order 

Writing Handbook for Coal Mines and 

Metal and Nonmetal Mines’’ at http:// 

www.MSHA.gov. The Handbook 

provides guidance to MSHA compliance 

personnel when issuing or reviewing 

citations and orders, and is intended to 

achieve consistent enforcement. 

MSHA disagrees with the comments 

that the increase in penalty points for 

negligence is excessive. The increase in 

penalty points included in the final rule 

is in accord with the Mine Act’s 

requirement to consider an operator’s 

negligence when assessing penalties. 

This aspect of the final rule was 

designed so that higher penalties would 

be assigned to operators who exhibit 

increasingly higher levels of negligence, 

i.e., a lack of care towards protection of 

miners from safety and health hazards. 

MSHA intends that the final rule’s 

increase in penalty points for the 

negligence criterion will result in 

increased compliance with the Mine Act 

and MSHA’s safety and health standards 

and regulations and a greater 

commitment to safety and health on the 

part of mine operators. No changes were 

made to the proposal; the final rule 

adopts the proposed language. 

Table II–10 shows the penalty points 

for negligence under the existing and 

final rule. 


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(e) Gravity 

Final § 100.3(e) is derived from the 

existing provision and, like the 

proposal, provides that the gravity or 

seriousness of a violation is determined 

by three factors: (1) The likelihood of 

occurrence of an event, (2) the severity 

of injury or illness if the event has 

occurred or were to occur, and (3) the 

number of persons potentially affected. 

The final rule, like the proposal, 

increases penalty points assigned under 

this provision for each of the three 

gravity factors as follows: (1) Points for 

likelihood of occurrence increase from 

10 to 50; (2) points for severity of injury 

or illness increase from 10 to 20; and (3) 

points for the number of persons 

potentially affected increase from 10 to 

18. The total maximum points is 

increased from 30 to 88 under the final 

gravity criterion. 

Several commenters supported the 

proposed increased points for gravity. 

One commenter suggested that the 

proposed points for the severity and 

persons potentially affected should have 

increased at the same rate as the 

likelihood factor. Another commenter, 

who supported increased points for 

gravity in general, expressed concern 

that the factor pertaining to persons 

potentially affected is routinely 

understated by MSHA inspectors, and 

results in fewer penalty points and thus 

a lower penalty than what should be 

assessed. 

Other commenters opposed the 

increase in points for gravity. These 

commenters expressed concern that 

MSHA essentially eliminated the 

distinction between S&S and non-S&S 

violations from a penalty perspective. 

These commenters gave the example 

that a non-S&S violation with an 

unlikely likelihood and a fatal severity 

would receive 30 gravity points whereas 

an S&S violation with a reasonably 

likely likelihood and a lost workdays 

severity would receive 35 gravity points. 

MSHA disagrees with comments 

stating that proposed increased points 

for gravity are excessively high. 

Increased points for gravity are directed 

at operators whose mines experience the 

more serious mine safety and health 

hazards. Increased points, which result 

in increased penalties, should 

encourage these operators to place 

greater emphasis on immediately 

correcting the more serious violations 


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because they pose the greatest safety 

and health risk to miners. 

The Agency does not believe that this 

aspect of the final rule results in a 

blurred distinction between S&S and 

non-S&S violations. MSHA reviewed 

violations that were assessed in 2005 

and projects that S&S violations would 

receive an average penalty of $1,385 

under the final rule and non-S&S 

violations would receive an average 

penalty of $207. 

Moreover, MSHA’s intent is to place 

much more emphasis on the overall 

gravity of a violation. To achieve this 

goal, each of the three gravity point 

tables is revised to increase the points 

for likelihood, severity, and persons 

potentially affected. In doing so, the 

Agency allocated twice as many points 

for a permanently disabling injury than 

an injury that resulted only in lost work 

days. MSHA also doubled the number of 

points for a fatal injury, as compared 

with a permanently disabling injury. 

This approach to increasing gravity 

points for severity is reasonable and 

necessary because MSHA believes that, 

while all three components of the 

gravity determination are important in 

determining risk, the likelihood or 

probability of an injury occurring 

should carry more weight in the overall 

penalty determination. 

For likelihood, MSHA made the 

increase in gravity points between levels 

more pronounced as the likelihood of an 

injury increased. An unlikely situation 

has some potential to result in an injury, 

and a reasonably likely situation has a 

higher potential for an injury to occur. 

MSHA’s position is that those violations 

with any degree of likelihood should 

receive more points and, as the 

likelihood increases, the number of 

associated points should increase 

significantly. The Agency considers a 

situation that resulted in a ‘‘highly 

likely’’ or ‘‘occurred’’ likelihood as a 

worst-case scenario deserving 

significantly higher points. 

Regarding MSHA inspectors’

evaluation of the number of persons 

potentially affected, MSHA continues to 

evaluate inspector citations to 

determine where improvements can be 

made. The ‘‘number of persons 

potentially affected’’ is a topic covered 

in the gravity section of the ‘‘Citation 

and Order Writing Handbook for Coal 

Mines and Metal and Nonmetal Mines’’

at http://www.MSHA.gov. The 

Handbook provides guidance to MSHA 

compliance personnel when issuing or 

reviewing citations and orders, and is 

intended to achieve consistent 

enforcement. MSHA has identified the 

‘‘number of persons potentially 

affected’’ as an area that needs to be 

emphasized in both new and refresher 

inspector training. In an effort to 

improve inspector performance and 

consistency in this area, the Agency has 

undertaken a number of initiatives. It is 

emphasizing this area in inspector 

training, placing greater emphasis on 

this issue in staff meetings at all levels—

headquarters and field, and improving 

enforcement oversight. 

Final § 100.3(e) adopts the language in 

the proposed rule. 

Tables II–11, II–12, and II–13 show 

the existing and final penalty points for 

gravity. 


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(f) Demonstrated Good Faith of the 

Operator in Abating the Violation 

Final § 100.3(f), like the proposal, 

decreases the amount of the reduction of 

the penalty, where the operator abates 

the violation within the time set by the 

inspector, from 30% under the existing 

rule to 10% under this final rule. In 

addition, the final rule, like the 

proposal, eliminates the existing 

provision which adds 10 points where 

an operator does not abate the violation 

within the specified time period. 

As stated throughout this rulemaking, 

MSHA takes the demonstrated good 

faith of the operator in abating the 

violation into consideration because it is 

one of the statutory criteria to be used 

in determining civil penalties under the 

Mine Act. Several commenters 

supported the proposed decrease in the 

‘‘good faith’’ reduction from 30% to 

10%, but others opposed the decrease, 

stating that MSHA should retain the 

existing 30% reduction because any 

smaller amount would be a disincentive 

for operators to promptly abate 

violations. 

MSHA does not anticipate that 

changing the good faith reduction from 

30% to 10% would adversely affect 

miner health and safety or the prompt 

abatement of violations. Based on 2005 

assessed violation data, mine operators 

realized a $5.7 million decrease in 

proposed civil penalty assessments due 

to the 30% good faith reduction. MSHA 

projects that the 10% good faith 

reduction in the final rule will result in 

a $4.7 million decrease in proposed 

penalty assessments, although the 

Agency acknowledges that total 

penalties increase significantly under 

the final rule. MSHA believes that the 

$4.7 million decrease under the final 

rule provides an incentive equivalent to 

that in the existing rule for mine 

operators to abate violations in a timely 

manner. 

The strongest incentive for abatement 

under the final rule is a withdrawal 

order issued under section 104(b) of the 

Mine Act. The Mine Act requires that 

the inspector set a ‘‘reasonable time’’ for 

abatement for all violations, regardless 

of severity. The inspector sets the 

abatement time based on the nature of 

the hazard and the corrective actions 

needed. Should the mine operator fail to 

abate the hazard within the prescribed 

time, the inspector will issue a 

withdrawal order closing the affected 


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area of the mine. In 2006, MSHA used 

this regulatory tool and issued 1,200 

withdrawal orders that resulted in 

closure of the area of the mine affected 

by the violation. 

All mine operators should take their 

responsibilities for mine safety and 

health seriously and promptly abate all 

violations of the Mine Act and MSHA’s 

safety and health standards and 

regulations. The Agency also takes 

seriously its responsibility to administer 

the civil penalty provisions in the Mine 

Act in accordance with the statutory 

criteria. Congress intended that MSHA 

provide some consideration to mine 

operators who, when issued a citation 

for a violation of a safety and health 

standard, correct that violation within 

the time set by the inspector. In 

recognition of the statutory intent, the 

final rule includes an appropriate ‘‘good 

faith’’ reduction. MSHA continues to 

believe that operators should take 

prompt corrective action, regardless of 

the amount of the monetary incentive, 

in order to avoid the prolonged 

existence of a violative or dangerous 

condition in the mine. In the event, 

however, that an operator does not abate 

a violation within the time set by the 

inspector, MSHA believes that the Mine 

Act’s provisions for withdrawal orders 

and daily penalties, discussed below, 

provide an adequate compliance 

incentive. For these reasons, and in 

response to comments, the final rule 

retains the 10% ‘‘good faith’’ reduction, 

as proposed. 

Some commenters opposed 

eliminating the 10 additional points 

under the existing rule where an 

operator does not abate the violation 

within the time specified, while others 

supported the proposed elimination of 

10 additional points. In retaining this 

aspect of the proposal, the Agency 

intends that the Mine Act’s following 

two sanctions for an operator’s failure to 

correct violations within the time set by 

the inspector be applied: (1) issuance of 

a withdrawal order under § 104(b) of the 

Mine Act,; and (2) application of the 

daily penalty under § 110(b) of the Act. 

MSHA believes that these two sanctions 

are adequate tools for the Agency to use 

to address the circumstances in which 

an operator does not abate the violation 

within the time specified by the MSHA 

inspector. 

Final § 100.3(f) adopts the language in 

the proposed rule. 

(g) Penalty Conversion Table 

Final § 100.3(g), like the proposal, 

provides the penalty conversion table 

used to convert total penalty points to 

a dollar amount. The final rule, like the 

proposal, retains the statutory maximum 

penalty of $60,000. In addition, it 

establishes a new minimum penalty of 

$112, up from $72 in the existing rule. 

The proposed rule converted points to 

dollars as follows: for 60 points or 

fewer, the minimum dollar amount was 

$112. Each additional point above 60 up 

to 133 caused the dollar value to 

increase by a fixed 8.33%. The dollar 

value assigned for 133 points was 

$38,387. At 133 points, the dollar value 

increased by approximately $3,070 for 

each additional penalty point. The 

maximum number of points was 140 

and the maximum dollar value was 

$60,000. 

MSHA received some comments 

stating that the $112 minimum penalty 

was too low. The final rule retains the 

$112 minimum penalty, which is a 56% 

increase from the minimum penalty 

under the existing rule, and which 

MSHA believes represents a reasonable 

adjustment upward from the $60 

minimum penalty under the existing 

penalty regulations. 

Several commenters stated that 

penalties under the proposed rule could 

result in lower penalties than under the 

existing regulations. One commenter 

provided the example that under the 

existing regulations 89 points are 

required before MSHA imposes a fine of 

more than $25,000, while under the 

proposed regulations, 128 points would 

be required before MSHA would impose 

a fine of more than $25,000. As stated 

earlier in this preamble, to accurately 

determine a penalty under the proposed 

rule one cannot do a side-by-side 

comparison of existing to proposed 

penalties without also considering how 

the point tables have changed. 

Although MSHA projects that the vast 

majority of violations will receive an 

increase in penalties under this final 

rule, MSHA’s analysis of violations that 

were assessed in 2005 shows that a 

small percentage of violations—5%, or 

5,858 of the 116,673 total violations—

would receive a lower penalty under the 

final rule than under the existing 

regulations. Of the violations that would 

receive a lower penalty, approximately 

3,485 result from use of the 15-month 

period and the 10-violation threshold 

for assigning penalty points under 

violation history. MSHA believes that 

the penalty reductions in these cases are 

appropriate in that they generally reflect 

an improvement in the most recent 

violation history or a small number of 

safety and health hazards. 

The remaining 2%, approximately 

2,400 violations, involve a reduction in 

the penalty for other reasons. Of these, 

945 are violations which were assessed 

under the special assessment provision 

of the existing rule, but would receive 

a regular assessment under the final 

rule. As mentioned, however, in any 

circumstance in which MSHA’s regular 

assessment may result in anomalies or 

inequitable results, MSHA may choose 

to apply the special assessment 

provision of this final rule to assure that 

the penalty is appropriate. Another 671 

are violations which, under the final 

rule, would not receive the 10-point 

penalty for failure to abate under the 

existing rule. As stated previously, 

MSHA believes that the Mine Act’s two 

sanctions for an operator’s failure to 

correct violations within the time set by 

the inspector—the issuance of a 

withdrawal order under § 104(b) of the 

Mine Act and the daily penalty under 

§ 110(b) of the Act—are adequate tools 

for the Agency to use to address the 

circumstances in which an operator 

does not abate the violation within the 

time specified by the MSHA inspector. 

The final 757 violations involve a 

lowering of the penalty by a negligible 

amount. 

Final § 100.3(g) adopts the language in 

the proposed rule. 


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(h) Effect on Operator’s Ability To 

Remain in Business 

Final § 100.3(h), like the proposal, 

provides that MSHA presumes that the 

operator’s ability to continue in 

business will not be affected by 

payment of a civil penalty. In addition, 

like the proposal, it provides that MSHA 

may adjust the penalty if the operator 

submits information to MSHA 

concerning the operation’s financial 

status which shows that payment of the 

penalty will adversely affect the 

operator’s ability to continue in 

business. 

In the proposal, MSHA made several 

non-substantive editorial changes for 

clarity. 

Several commenters expressed 

concern that the proposed increase in 

penalties would put small operations 

out of business. Many of these 

commenters requested a variance from 

the penalty regulations. In addition, one 

commenter stated that MSHA should 

not take an operator’s ability to continue 

in business into consideration when 

determining a penalty. This commenter 

expressed concern that an operator that 

cannot afford to pay its penalties should 

not operate at all. 

MSHA takes an operator’s ability to 

continue in business into consideration 

because it is one of the statutory criteria 

to be used in determining civil penalties 

under the Mine Act. Under this final 

rule, as in the existing rule, MSHA may 

adjust the penalty if the operator 

demonstrates that the amount of the 

penalty will adversely affect the 

operator’s ability to continue in 

business. A variance cannot be granted, 

however, because under the Mine Act, 

MSHA may modify only the application 

of a safety standard. 

Final § 100.3(h) adopts the language 

in the proposed rule. 

Unwarrantable Failure (§ 100.4) 

Final § 100.4, like the proposal, 

deletes the single penalty assessment 

provision in existing § 100.4. The 

existing single penalty assessment 

provided for a $60 penalty for certain 

non-S&S violations, i.e., those violations 

that were not reasonably likely to result 

in reasonably serious injury or illness, 

that were abated within the time set by 

the inspector, and that did not involve 

an operator with an excessive history of 

violations. 

MSHA received numerous comments 

on the proposed deletion of the single 

penalty assessment provision. Some 

commenters supported deleting the 

single penalty assessment because they 

stated that these violations were often 

perceived as insignificant and accepted 

as the cost of doing business. Some of 

these commenters provided examples of 

operators receiving $60 single penalties 

for violations pertaining to 

accumulations of combustible material, 

roof control problems, and ventilation 

problems, where it was cheaper to pay 

the $60 penalty than to correct the 

underlying violative condition. 

Other commenters opposed deleting 

the single penalty assessment. Those 

commenters stated that the single 

penalty is generally reserved for nonS&S violations that have little or no 

safety consequences and, therefore, 

these violations should receive minimal 

penalties. Most of the commenters 

opposed to deleting the single penalty 

assessment expressed concern that 

operators would be required to spend 

disproportionate amounts of time and 

resources on violations having minimal 

impact on safety and health. In addition, 

some commenters expressed concern 

that deleting the single penalty 

assessment will result in increased 

contests and litigation. After careful 

review of all comments, an examination 

of Agency data, and based upon Agency 

experience, MSHA has decided that the 

single penalty assessment should not be 

included in the final rule. 

As mentioned earlier, the agency has 

structured a civil penalty regulation 

which focuses on reducing all mine 

safety and health hazards—both nonS&S and S&S. MSHA believes that every 

violation has the potential to contribute 

to hazardous or unhealthful conditions 

and should be individually assessed a 

civil penalty that is commensurate with 

the severity of the violation. Also, 

MSHA’s experience and data reveal that 

often non-S&S violations, if left 

uncorrected, will lead to more 

hazardous situations. For this reason, 

MSHA is deleting the single penalty 

assessment provision in an effort to 

prompt the mining community to pay 

attention to, and promptly abate, all 

violations. 


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Non-S&S violations are not always 

trivial violations deserving nominal 

penalties. Accurate recordkeeping, good 

housekeeping, and meaningful training 

are essential elements of an effective 

safety and health program in the 

workplace. For example, an operator’s 

failure to properly train a miner in first 

aid is often classified as a non-S&S 

violation; however, such a violation 

sometimes can result in fatal 

consequences. 

Moreover, a violation that is not 

reasonably likely to result in a 

reasonably serious injury or illness may 

eventually result in a serious injury or 

illness if it is not corrected. By deleting 

the single penalty assessment provision, 

the Agency believes that mine operators 

will focus more attention on identifying 

and correcting the root causes of mine 

safety and health hazards. These nonS&S violations should not be viewed as 

an insignificant part of the cost of doing 

business. Rather, they should be 

evaluated under the regular assessment 

provision so that the operator’s size, 

history, negligence, and the gravity of 

the violation can be taken into 

consideration in determining the 

amount of the penalty assessment. 

Operators with a low history of 

violations, violations that truly involve 

minor or technical violations, that pose 

less serious threats to health and safety, 

that involve low or no negligence, and 

that are abated within the time set by 

the inspector, likely will receive a total 

of 60 points or fewer and a penalty of 

only $100 (including application of the 

‘‘good faith’’ reduction) under the 

regular assessment provision of this 

final rule. 

Some commenters requested that 

MSHA include empirical data and 

projections pertaining to deleting the 

single penalty assessment provision. 

MSHA, using violations that were 

assessed in 2005, converted penalties 

assessed under the single penalty 

provision of the existing rule to 

penalties under the regular assessment 

provision of this final rule. MSHA 

found that the $60 penalties assessed 

under the single penalty provision 

would range from $100 (assuming 

application of the ‘‘good faith’’

reduction) to $14,343 for metal and 

nonmetal mines and from $112 to 

$21,442 for coal mines. The Agency is 

providing this information for 

illustrative purposes only. The highest 

ranges of penalties occurred for one coal 

violation and for one metal/nonmetal 

violation and are anomalies. MSHA 

does not expect non-S&S violations to 

result in penalties of this level under the 

final rule; however, in the event that a 

regular assessment produces an 

inappropriate result, the penalty would 

be processed under the special 

assessment provision. Under the final 

rule, MSHA estimates the average nonS&S penalty would be $192. 

In addition, under the final rule, 

MSHA projects that 44% of violations 

(32% for coal and 59% for metal and 

nonmetal mines) would receive the 

minimum penalty (including 

application of the ‘‘good faith’’

reduction). This compares with 64% of 

violations (58% for coal and 72% for 

metal and nonmetal mines) that 

received the single penalty under the 

existing rule. 

Based on the Agency’s evaluation of 

the violations that were assessed in 

2005 and the Agency’s experience 

gained under the existing single penalty 

provision, MSHA believes that deleting 

the single penalty assessment will 

encourage compliance with the Mine 

Act and MSHA’s safety and health 

standards and regulations and prompt 

abatement of violations. 

For the foregoing reasons, the single 

penalty assessment provision is deleted 

from this final rule. 

Final § 100.4 is a new provision 

which replaces existing § 100.4 

pertaining to the single penalty 

assessment. Final § 100.4, like the 

proposal, implements Section 8(a)(1)(B) 

of the MINER Act related to minimum 

unwarrantable failure penalties. It 

establishes a minimum penalty of 

$2,000 for any citation or order issued 

under section 104(d)(1) of the Mine Act, 

and establishes a minimum penalty of 

$4,000 for any order issued under 

section 104(d)(2) of the Mine Act. 

Commenters generally were in 

agreement with the proposed provision. 

Some commenters, however, expressed 

concern that the statutory minimum 

penalties of $2,000 and $4,000 would 

become default penalties. They stated 

that these penalties should either be the 

statutory minimum amount or the 

amount assessed under the regular 

assessment formula, whichever is 

greater. MSHA agrees. Under the final 

rule, penalties for unwarrantable failure 

violations processed through the regular 

assessment provision will receive at 

least the minimum amount as specified 

in the MINER Act. Unwarrantable 

failure violations processed as regular 

assessments which generate a penalty 

greater than the statutory minimum will 

receive that penalty. As appropriate, 

unwarrantable failure violations also 

may continue to be processed under the 

special assessment provision. 

Final § 100.4 adopts the language of 

the proposed rule. 

Determination of Penalty; Special 

Assessment (§ 100.5) 

Final § 100.5, like the proposed rule, 

is derived from existing § 100.5, and, 

like the proposal, provides for a special 

assessment for those violations which 

MSHA believes should not be processed 

under the regular assessment provision. 

It also removes the second sentence in 

existing § 100.5(a) which states that: 

Although an effective penalty can generally 

be derived by using the regular assessment 

formula and the single assessment provision, 

some types of violations may be of such a 

nature or seriousness that it is not possible 

to determine an appropriate penalty under 

these provisions. 

In addition, this provision, like the 

proposal, removes the existing list of 

eight categories of violations that MSHA 

reviews for possible special assessment. 

MSHA received numerous comments 

on the Agency’s proposal to delete the 

eight categories of violations which are 

reviewed for special assessment in the 

existing rule. Some commenters 

supported processing most violations 

under the regular assessment provision, 

stating that the existing special 

assessment process sometimes results in 

extended periods between the issuance 

of a citation or order and the issuance 

of the penalty. These commenters 

indicated that MSHA has sometimes 

taken over one year to issue a penalty 

under the special assessment provision, 

and stated that penalties would be 

processed in a timelier manner under 

the proposal. Other commenters 

supported the proposal, stating that it 

would remove arbitrary penalties from 

being issued under the special 

assessment provision. 

Some commenters opposed the 

proposal. They expressed concern that 

processing violations that fall in the 

eight categories in the existing rule as 

regular assessments would result in 

lower penalties. Some of these 

commenters stated that the final rule 

should levy heavy penalties on blatant 

violations and operators who flout the 

law, and that eliminating the eight 

categories of violations that receive 

consideration for special assessments 

under the existing rule will create 

confusion for companies by eliminating 

certainty about when they will be 

subject to special assessments. Other 

commenters who opposed the proposal 

expressed concern that MSHA would 

exercise unfettered discretion in 

assessing any violation under the 

special assessment provision. 

MSHA agrees with the commenters 

who stated that processing most 

violations under the regular assessment 

provision will enhance the consistency 


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and timeliness of the assessment 

process. One of MSHA’s goals for this 

rulemaking is to improve the 

effectiveness and efficiency of the civil 

penalty process. As stated in the 

preamble to the proposed rule, the 

existing special assessment provision 

has resulted in a time-consuming and 

resource-intensive process. For 

violations specially assessed in 2005, it 

took an average of 168 days from the 

date a violation was terminated to the 

date the assessment was mailed. Under 

the regular assessment, such violations 

generally are assessed within 70 days of 

the termination date. MSHA strongly 

believes that penalties issued closer to 

the issuance of the citation or order will 

have a more meaningful, behaviorchanging effect on mine operators. 

In addition, because MSHA is 

retaining its discretion to determine 

which types of violations would be 

reviewed for special assessment, 

removal of the eight categories of 

violations will not limit the Agency’s 

authority to waive the regular 

assessment if the Agency determines 

that a special assessment is appropriate 

for any type of violation. Indeed, as 

stated in the preamble to the proposed 

rule, MSHA never intended the existing 

eight categories to be an exhaustive list 

of the types of violations that could be 

assessed under the special assessment 

provision. This final rule clarifies the 

Agency’s intent. Further, as stated 

throughout this rulemaking, by 

removing the specific list of violations, 

MSHA will be able to focus its 

enforcement resources on more field 

enforcement activities, as opposed to 

administrative review activities. 

MSHA projects that the regular 

assessment provision will provide an 

appropriate penalty for most violations. 

By way of illustration, using data for 

violations that were assessed in 2005, 

MSHA compared the penalty for 2,698 

of the 3,189 violations assessed under 

the special assessment provision to the 

penalty that would have been assessed 

under the regular assessment provision 

of this final rule. The Agency excluded 

violations that involved a fatality and 

those issued to agents of the mine 

operator from this comparison because 

those violations would continue to be 

processed as special assessments under 

the final rule. MSHA found that the 

penalty for these 2,698 violations would 

have increased by approximately 98% 

under the regular assessment provision 

of this final rule. Nevertheless, MSHA 

expects that there will be circumstances 

in which the regular assessment 

provision of this final rule will not 

provide an appropriate penalty for 

particular violations. The Agency found, 

in reviewing violations that were 

assessed in 2005, approximately 35% of 

all violations issued under the special 

assessment provision of the existing rule 

would have received a lower penalty 

under the regular assessment provision 

of this final rule. MSHA intends to 

apply the special assessment provision 

of this final rule for those violations 

where the regular assessment does not 

provide an appropriate penalty. 

Consistent with a commenter’s request, 

MSHA intends to review the special 

assessment provision in the future to 

determine whether it is achieving its 

purpose or whether changes are needed. 

MSHA monitors, on a monthly basis, 

the number of assessments under the 

existing special assessment provision. 

MSHA intends to continue this 

monitoring and to analyze the 

monitoring results. In addition, as stated 

previously, MSHA intends to continue 

to process violations involving a fatality 

and those issued to agents of the mine 

operator as special assessments. MSHA 

will also process flagrant violations, 

violations for failure to timely notify 

MSHA, and timely abate violations, and 

smoking violations, as listed under 

sections 100.5(c) through (f) as special 

assessments. 

Final § 100.5(a) adopts the language of 

the proposed rule. 

Final § 100.5(b), like the proposal, 

contains non-substantive changes for 

clarity. It removes the reference to 

existing § 100.4(b) because the single 

penalty provision is deleted in this final 

rule. MSHA received no comments on 

this proposal and made no changes to it. 

Therefore, final § 100.5(b) adopts the 

language of the proposed rule. 

Final § 100.5(c), like the proposal, 

remains unchanged from existing 

§ 100.5(c). It provides that any operator 

who fails to correct a violation for 

which a citation has been issued under 

section 104(a) of the Mine Act within 

the period permitted for its correction 

may be assessed a civil penalty of not 

more than $6,500 for each day during 

which such failure or violation 

continues. 

One commenter stated that MSHA 

should apply the maximum daily 

penalty of $6,500 while abatement work 

is being performed and it should 

continue to be applied every day until 

all such work is completed. MSHA will 

continue to enforce the daily penalty in 

accordance with the Mine Act, which 

provides for a ‘‘reasonable time’’ for 

abatement. The final rule adopts the 

language used in the proposal. 

Final § 100.5(d), like the proposed 

rule, remains unchanged from existing 

§ 100.5(d). This provision pertains to 

penalties for miners who violate 

standards related to smoking and 

smoking materials. MSHA received a 

few comments on this proposal. They 

suggested that MSHA increase the 

maximum penalty that could be 

assessed against a miner for a smoking 

violation. One commenter suggested an 

increase from $275 to $500 and another 

commenter suggested an increase to 

$220,000, similar to the maximum 

penalty for flagrant violations. The 

maximum penalty for miners who 

violate standards related to smoking or 

smoking materials, however, is 

established by statute, and can be 

adjusted only for inflation unless 

specifically adjusted by Congress. 

Therefore, the final rule retains the 

language of existing paragraph (d) as 

proposed. 

Final § 100.5(e), like the proposal, 

implements the provision of the MINER 

Act pertaining to penalties for flagrant 

violations. Under the MINER Act, 

violations that are deemed to be flagrant 

may be assessed a civil penalty of not 

more than $220,000. The proposal, 

which adopted the definition in the 

MINER Act, defined a ‘‘flagrant’’

violation as a reckless or repeated 

failure to make reasonable efforts to 

eliminate a known violation of a 

mandatory health or safety standard that 

substantially and proximately caused, or 

reasonably could have been expected to 

cause, death or serious bodily injury. 

Several commenters stated that the 

proposed language with respect to 

flagrant violations was too vague. They 

suggested that flagrant violations be 

limited to repeated violations of the 

same standard that were issued under 

Section 104(d) of the Mine Act, 

characterized as involving reckless 

disregard. They further suggested that 

flagrant violations be limited to 

violations that have been finally 

adjudicated. MSHA considered these 

suggestions in developing this final rule 

and has determined that it would be 

most beneficial to miner’s safety and 

health to retain the proposed language. 

In addition, the proposed language 

mirrors the MINER Act. Violations that 

are deemed to be flagrant would be 

subject to a penalty of up to $220,000 

under the special assessment provision 

of this final rule. 

Several commenters expressed 

concern that proposed § 100.5(e) 

wrongly applied the penalty for flagrant 

violations to violations under section 

110(a) of the Mine Act. They stated that 

Congress adopted penalties for flagrant 

violations by amending section 110(b) of 

the Mine Act, which pertains to 

penalties assessed to operators who 

have failed to correct a violation. They 

asserted that Congress intended the 


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penalty for flagrant violations to apply 

only to failures to correct a violation 

under section 110(b). 

Section 1301 of the Pension 

Protection Act contains technical 

amendments to the MINER Act. Public 

Law No. 109–280 (Aug. 17, 2006). The 

provision for criminal penalties was 

moved from section 110(a)(2) of the 

Mine Act and is now the new section 

110(d). Section 110(b) of the Mine Act 

now has two sub-subsections. Section 

110(b)(1) provides for assessment of a 

daily civil penalty for violations that 

have not been corrected. Section 

110(b)(2) provides for assessment of a 

civil penalty of not more than $220,000 

for violations that are deemed to be 

flagrant. 

For a number of reasons, MSHA 

believes that a flagrant violation under 

section 110(b)(2) is not limited to a 

violation that an operator has failed to 

correct under section 110(b)(1). First, 

section 110(b)(1) specifically applies to 

failure to correct a ‘‘violation for which 

a citation has been issued.’’ In contrast, 

section 110(b)(2) applies to failure to 

eliminate a ‘‘known violation,’’ and 

does not specify that a ‘‘known 

violation’’ must be a violation which 

has been cited. 

Second, the Senate Report 

accompanying the MINER Act discusses 

flagrant violations without any reference 

to section 110(b) and without any 

indication that a flagrant violation must 

be a violation which has been cited. S. 

Rep. No. 109–365 (Dec. 6, 2006). 

Third, section 110(b)(2) applies to 

failure to eliminate violations ‘‘under 

this section’’ (emphasis added) that are 

deemed to be flagrant. Section 110(b)(2) 

cannot be read as applying only to 

violations under section 110(b) because 

section 110(b) is a subsection, not a 

section. Instead, Section 110(b)(2) must 

be read as applying to violations under 

the section in which it appears—i.e., 

section 110—including section 110(a). 

Fourth, section 110(b)(2) is, by virtue 

of its designation as a sub-subsection 

separate and distinct from section 

110(b)(1), a provision distinct and 

independent from section 110(b)(1). 

That designation suggests that section 

110(b)(2) is not limited to violations 

encompassed by section 110(b)(1). 

Finally, it would be illogical to limit 

flagrant violations to violations which 

have been cited. Plainly, failure to 

eliminate a violation which is known to 

the operator but which has not been 

cited by MSHA—perhaps because 

MSHA has not conducted an inspection 

since the violation arose—can be just as 

dangerous, and just as deserving of an 

enhanced penalty, as a violation which 

is known to the operator and which has 

been cited. 

Accordingly, the proposal has been 

modified. Final § 100.5(e) includes a 

reference to section 110(b)(2) of the 

Mine Act. 

Final § 100.5(f), like the proposal, 

implements the penalty provisions of 

the MINER Act pertaining to prompt 

incident notification. Under the MINER 

Act, an operator who fails to provide 

timely notification to the Secretary, in 

the event of a death, or an injury or 

entrapment with reasonable potential to 

cause death, under section 103(j) 

(relating to the 15-minute requirement) 

shall be assessed a civil penalty of not 

less than $5,000 and not more than 

$60,000. 

One commenter expressed concern 

that proposed § 100.5(f) would be 

applied to all violations under part 

50.10, stating that for example, 

violations for failure to report a fire or 

hoist problems would be included. 

Final § 100.5(f), like the proposed rule, 

implements the penalty provisions of 

the MINER Act pertaining to prompt 

incident notification. In this regard, 

final § 100.5(f) is applicable only to the 

following events: the failure to notify 

MSHA of a death, or an injury or 

entrapment which has a reasonable 

potential to cause death. 

Several commenters stated that this 

proposed provision is 

counterproductive and could inhibit 

first responders from time-critical 

stabilization of a victim. They suggested 

adding language, for example, that in a 

case in which delay has the potential to 

cause additional injuries, or the victim 

of an accident requires first aid, the 15 

minutes shall begin upon stabilization 

of the site and the victim. This same 

issue was raised during the rulemaking 

concerning MSHA’s Emergency Mine 

Evacuation Final Rule published on 

December 8, 2006. In the preamble to 

that rule, MSHA addressed the issue in 

the following manner: 

If a situation were to arise involving 

extenuating circumstances, such as an 

operator having to choose between saving 

someone’s life and notifying MSHA, 

enforcement discretion would take those 

circumstances into account. MSHA does not 

expect that an operator who has to make a 

decision between rendering life-saving 

assistance and calling MSHA would be 

penalized for providing that assistance. 

71 FR 71430 (Dec. 8, 2006). MSHA 

supports the foregoing conclusion. 

No changes were made to proposed 

§ 100.5(f) and the final rule adopts the 

proposed language. 

Procedures for Review of Citations and 

Orders; Procedures for Assessment of 

Civil Penalties and Conferences 

(§ 100.6) 

Final § 100.6, like the proposed rule, 

contains requirements and 

administrative procedures for review of 

citations and orders. 

Final § 100.6(a), like the proposal, 

contains the provision in existing 

100.6(a) that all parties, i.e., the operator 

and miners or their representatives, 

shall have the opportunity to review 

each citation and order with MSHA. In 

addition, it incorporates existing 

§ 100.6(c), which provides that the 

decision to grant a request for a 

conference is within MSHA’s discretion. 

MSHA received no comments on the 

proposed reorganization of § 100.6(a). 

Therefore, the final rule adopts the 

language in the proposal. 

Final § 100.6(b), like the proposal, is 

derived from existing § 100.6(b). MSHA 

proposed modifying the existing 

provision by reducing the period, from 

10 days to five days, within which an 

operator could submit additional 

information or request a safety and 

health conference with the District 

Manager or designee. 

In addition, at the last two public 

hearings during this rulemaking, the 

Agency stated in its opening statement 

that it intended to include a 

requirement that a request for a safety 

and health conference be in writing and 

include a brief statement as to why each 

citation or order should be conferenced. 

The Agency requested comment on this 

issue. To allow all parties an 

opportunity to comment on this issue, 

MSHA reopened the comment period to 

this rulemaking and specifically 

requested comments as to whether a 

request for a safety and health 

conference should be in writing and 

whether such a request should include 

a brief statement of the reason why each 

citation or order should be conferenced. 

A few commenters supported the 

proposed reduction of the period within 

which an operator could submit 

additional information or request a 

safety and health conference. One 

commenter stated that the proposal 

would result in a more effective civil 

penalty system because penalties would 

be assessed closer in time to the 

issuance of the citation. 

Almost all commenters, however, 

opposed the proposed reduction in the 

time period for requesting a safety and 

health conference. They stated that they 

would not have sufficient time to 

evaluate a citation or order and 

determine the appropriate course of 

action to take. In addition, they stated 


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that delays in scheduling conferences 

often cause delays in the issuance of 

penalties. Several commenters noted 

that conferences sometimes are not held 

until several months after a request has 

been made because MSHA’s Conference 

and Litigation Representatives (CLRs) 

have a backlog of conferences. 

After receiving comments, MSHA 

decided not to reduce the 10-day period 

within which a party may submit 

additional information or request a 

safety and health conference. In making 

this decision, the Agency believes that 

the safety and health of miners is 

improved when, after an inspection, 

operators and miners or their 

representatives are afforded an ample 

opportunity to discuss safety and health 

issues with the MSHA District Manager 

or designee. 

MSHA received one comment in 

support of and several comments 

opposed to the proposed requirement 

that a request for a safety and health 

conference be in writing and include a 

brief statement of the reason why each 

citation or order should be conferenced. 

Commenters opposed to the proposal 

stated that a requirement that 

conference requests be in writing would 

cause extreme difficulties for the 

operator and ultimately result in 

discouraging the conference process. 

Specifically, these commenters stated 

that the proposed requirement places an 

unnecessary burden on operators who 

have limited administrative resources to 

thoroughly investigate citations and 

orders and gather documentation within 

a limited amount of time pertaining to 

each citation and order. 

One commenter generally agreed with 

the proposal that the request for a safety 

and health conference be in writing and 

include a brief statement as to why each 

citation or order should be conferenced, 

but stated that the requirement should 

not be mandatory. Several commenters 

stated that some MSHA districts 

currently require safety and health 

conference requests to be in writing. 

One commenter mistakenly believed 

that the existing regulations require that 

safety and health conference requests be 

in writing. 

After reviewing all comments, MSHA 

has decided to include in the final rule 

the proposed requirement that the 

request for a safety and health 

conference be in writing and include a 

brief statement as to why each citation 

should be conferenced. In making this 

decision, MSHA anticipates that this 

provision will assist parties requesting a 

conference to focus on the issues to be 

discussed at the conference. It is not 

MSHA’s intent under this proposal to 

require operators and/or miners’

representatives to provide a large 

amount of documentation. Rather, it is 

MSHA’s intent that operators and/or 

miners’ representatives provide a 

concise statement concerning the reason 

the requesting parties wish to discuss 

each violation. MSHA notes that the 

Agency does not intend to limit 

discussion at the safety and health 

conference to the specific points raised 

in the written statement. 

MSHA projects that this proposed 

provision will lead to a more 

meaningful and effective conference for 

all parties. Also, it will help expedite 

the conference process by providing the 

District Manager with necessary 

information prior to conducting the 

conference, including information that 

may assist the District Manager in 

deciding whether to grant a conference. 

Therefore, the final rule includes the 

requirement that a request for a safety 

and health conference be in writing and 

include a brief statement as to why each 

citation should be conferenced. 

Final 100.6(c), like the proposal, is 

derived from and remains unchanged 

from existing § 100.6(d). MSHA received 

no comments on this proposal. 

Final 100.6(d), like the proposal, is 

derived from existing §§ 100.6(e), (f), 

and (g). The final rule remains 

substantively unchanged from the 

proposed rule. MSHA received no 

comments on the proposal. 

Notice of Proposed Penalty; Notice of 

Contest (§ 100.7) 

Final § 100.7, like the proposal, is 

derived from existing 100.7, and 

provides for procedures applicable to a 

notice of proposed penalty and notice of 

penalty contest. Final paragraph (a) sets 

out the circumstances under which a 

notice of proposed penalty will be 

served on the parties, and final 

paragraph (b) sets out the procedures for 

contesting a notice of proposed penalty, 

and final order of the Commission. 

The final rule, like the proposal, 

includes editorial changes for clarity, 

but remains substantively unchanged 

from the existing provision. Proposed 

paragraph (a) stated that a notice of 

proposed penalty will be issued and 

served by certified mail. MSHA is 

interpreting ‘‘certified mail’’ to include 

delivery methods such as Federal 

Express that offer proof of delivery. The 

existing provision is therefore amended 

to include the equivalent of certified 

mail as a means of service of the notice 

of proposed penalty. 

Proposed § 100.7(b) deleted from the 

regulatory text the following: (1) The 

reference to a return mailing card that 

is used to request a hearing before the 

Commission, (2) the reference to 

providing instructions for returning the 

card to MSHA, and (3) the provision 

that MSHA will immediately advise the 

Commission of the contest and also 

advise the Office of the Solicitor of the 

contest. MSHA proposed these deletions 

because the Agency is no longer using 

a return mailing card. Instead, MSHA 

currently provides a statement that lists 

violations being assessed, instructions 

for paying or contesting assessments, 

and MSHA contact information to 

facilitate an operator’s request for a 

hearing. MSHA intends to continue this 

practice. In addition, MSHA intends to 

continue to advise the Office of the 

Solicitor and the Commission of the 

notices of penalty contest. MSHA has 

determined that this manner of operator 

notification of contested assessments 

does not constitute an Information 

collection activity by MSHA. 

Several commenters stated that 

MSHA should include in this rule a 

provision to force operators to pay 

assessed penalties. They expressed 

concern that uncollected fines send a 

message to all operators that MSHA is 

not serious about Mine Act 

enforcement. One commenter stated that 

it is within the Secretary’s authority to 

pursue such operators aggressively, that 

MSHA should do so, and that if MSHA 

believes that it has insufficient authority 

to do this, MSHA should submit 

legislative proposals to strengthen its 

ability to enforce the law. 

MSHA vigorously collects penalties 

and takes its collection activities 

seriously. In fact, for the 10-year period 

from 1997 through 2006, MSHA issued 

over $239 million in civil penalties and 

has collected nearly $175 million of 

that. In addition, MSHA notes that each 

agency that collects civil monetary 

penalties must have a policy to send 

delinquency letters to employers who 

have not made payments on the 

assessed penalties. According to the 

Debt Collection Improvement Act of 

1996, once the debt has been delinquent 

for 180 days, the debt should be sent to 

the U.S. Department of Treasury for 

collection. MSHA has the authority to 

refer delinquent civil penalty debt to 

Treasury and, on a weekly basis, refers 

unpaid debt to Treasury. Furthermore, 

MSHA has explored innovative ways to 

legally force operators to pay penalties 

and to deal aggressively with those who 

do not. Further suggestions related to 

collection activities, however, are 

beyond the scope of this rulemaking. 

No changes were made to proposed 

§ 100.7 and the final rule adopts the 

proposed language. 


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1The total number of violations for 2005 is the 

same as was presented in the analysis in support 

of the proposed rule. A few dozen independent 

contractor violations, however, were misclassified 

by employment size in that analysis. These have 

been corrected in MSHA’s analysis of the final rule. 

Service (§ 100.8) 

Final § 100.8, like the proposal, is 

substantively unchanged from the 

existing rule. It provides that service of 

proposed civil penalties will be made at 

the mailing address of record for an 

operator and miners’ representative, that 

penalty assessments may be mailed to a 

different address if MSHA is notified in 

writing of the new address, and that 

operators who fail to file a notification 

of legal identity under 30 CFR part 41 

will be served at their last known 

business address. Like the proposed 

rule, specific references to part 40 

(Representative of Miners) and part 41 

(Notification of Legal Identity) have 

been changed from existing § 100.8 to 

indicate that they are parts contained in 

Chapter I of Title 30 CFR. MSHA 

received no comments on this proposal. 

No changes were made to proposed 

§ 100.8 and the final rule adopts the 

proposed language. 

III. Executive Order 12866 

Executive Order 12866 as amended by 

Executive Order 13258 (Amending 

Executive Order 12866 on Regulatory 

Planning and Review) requires that 

regulatory agencies assess both the costs 

and benefits of regulations. To comply 

with Executive Order 12866, MSHA has 

prepared a Regulatory Economic 

Analysis (REA) for the final rule. The 

REA contains supporting data and 

explanation for the summary materials 

presented in sections III–VI of this 

preamble, including the covered mining 

industry, costs and benefits, feasibility, 

small business impact, and paperwork. 

The REA is located on MSHA’s Web site 

at http://www.msha.gov/regsinfo.htm. A 

copy of the REA can be obtained from 

MSHA’s Office of Standards, 

Regulations, and Variances. 

Executive Order 12866 classifies a 

rule as a significant regulatory action 

requiring review by the Office of 

Management and Budget if it meets any 

one of a number of specified conditions, 

including: Having an annual effect on 

the economy of $100 million or more, 

creating a serious inconsistency or 

interfering with an action of another 

agency, materially altering the 

budgetary impact of entitlements or the 

rights of entitlement recipients, or 

raising novel legal or policy issues. 

MSHA has determined that, based on 

the REA, the final rule would not have 

an annual effect of $100 million or more 

on the economy and, therefore, would 

not be an economically significant 

regulatory action under Section 3, 

paragraph (f) of Executive Order 12866. 

MSHA, however, has concluded that the 

final rule is otherwise significant under 

Executive Order 12866 because it raises 

novel legal or policy issues. 

A. Population at Risk 

Based on 2005 data, the final rule will 

apply to the entire mining industry, 

covering all 14,666 mine operators and 

6,585 independent contractors in the 

United States, as well as the 261,449 

miners and 83,267 contract workers 

they employ. 

B. Costs 

In order to derive and explain the cost 

impact of the final rule on the mining 

industry, MSHA has divided its analysis 

into three sections: (1) The baseline—

the total number and monetary amount 

of civil penalty assessments proposed 

by MSHA in 2005; (2) the impact of the 

final rule on civil penalty assessments 

under the assumption that mine 

operators and independent contractors 

take no actions, in response to increased 

proposed penalty assessments, to 

improve compliance with MSHA 

standards and regulations; and (3) the 

impact of the final rule on the number 

and amount of civil penalty assessments 

taking into account the anticipated 

response of mine operators and 

independent contractors to increase 

compliance with MSHA standards and 

regulations and thereby reduce the 

number of civil penalty assessments 

they otherwise would receive. There is 

an additional cost in the final rule 

associated with a new requirement that 

mine operators request a safety and 

health conference in writing and 

include a brief statement of the reason 

why each citation or order should be 

conferenced. 

It is important to note the nature of 

the increase in civil penalties as it 

impacts the mining industry. For most 

MSHA rules, the estimated impact 

reflects the cost to the mining industry 

of achieving compliance with the rule. 

For this final rule, the estimated impact 

consists of two parts: (1) Increased 

payments for penalties and (2) expenses 

incurred to increase compliance with 

MSHA standards and regulations so as 

to reduce the number and amount of 

civil penalties otherwise received. This 

analysis assumes, in the baseline against 

which the impacts of the rulemaking 

will be compared, a certain amount of 

non-compliance with current MSHA 

standards and regulations. Therefore, 

compliance efforts made in response to 

increased penalties are a cost shown in 

the final rule. This analysis reflects 

additional expenditures associated with 

improved compliance. 

1. Baseline 

The first step in estimating the impact 

of the final rule is to establish a 

baseline: the number and monetary 

amount of civil penalty assessments in 

the absence of the final rule. For this 

purpose, MSHA chose all violations that 

were assessed in 2005. Table III–1 

shows the number of civil penalty 

assessments issued in 2005, 

disaggregated by employment size for 

coal and metal and nonmetal (M/NM) 

operations, and independent contractors 

at coal and metal and nonmetal 

operations.1


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The employment size categories being 

used are 1–5 employees, 6–19 

employees, 20–500 employees, and 

more than 500 employees. These 

categories are relevant for the analysis of 

impact in Section V of this preamble, to 

determine whether small mines, as 

defined by the SBA and MSHA, will be 

significantly impacted by the final rule. 

Of the 116,673 civil penalty 

assessments issued in 2005, 113,484, or 

approximately 97.3%, were single 

penalty or regular assessments. The 

remaining 3,189, or 2.7%, were special 

assessments. 

As can be calculated from Table III–

1, there were approximately 25% more 

coal violations than metal and nonmetal 

violations in 2005, even though there 

were more than 31⁄2 times as many metal 

and nonmetal operators and 

independent contractors as there were 

coal operators and independent 

contractors. One reason for the larger 

number of coal violations is that there 

are approximately three times as many 

underground coal mines as 

underground metal and nonmetal 

mines. There are a number of 

circumstances surrounding 

underground mines which tend to result 

in a greater number of violations. They 

are required to be inspected more often, 

and conditions are generally more 

dangerous and subject to change. 

Another reason for more coal violations 

is that coal mines are, on average, larger 

operations than metal and nonmetal 

mines, and larger mines tend to receive 

more violations, on average, than 

smaller mines. The average coal mine 

operator employed approximately three 

times as many miners as the average 

metal and nonmetal operator in 2005. 

The amount used for each 2005 civil 

penalty assessment in the baseline was 

the penalty proposed by MSHA. Table 

III–2 shows, by employment size, the 

total baseline dollar amount of civil 

penalties proposed by MSHA in 2005 

for coal and metal and nonmetal mining 

operations and for independent 

contractors at coal and metal and 

nonmetal mines. 

Table III–2 reveals that total civil 

penalty assessments in 2005 were 

substantially larger—more than 50% 

larger—for coal mines than for metal 

and nonmetal mines. The larger 

aggregate penalty assessment for coal 

mines is due to the larger number of 

violations issued to coal mines and the 

increased average penalty per violation. 

Coal violations tend to be more serious, 

on average, than metal and nonmetal 

violations (e.g., 40% of coal violations 

are S&S, versus 23% for metal and 

nonmetal violations). 

Of the $24.9 million in civil penalties 

proposed by MSHA in 2005, $16.6 

million, or approximately 67%, were 

from single penalty and regular 

assessments. The remaining $8.2 

million were from special assessments. 

Of this amount, approximately $0.3 

million were issued to agents of mine 

operators and another $1.5 million were 

issued for violations involving a fatality. 

Table III–3 displays the baseline 

average dollar amount of a proposed 

civil penalty in 2005 disaggregated by 

employment size for coal and metal and 

nonmetal mining operations and for 

independent contractors at coal and 

metal and nonmetal mines. The average 

penalty assessment for a violation in 

2005 was $213. For a single penalty 

assessment, the average penalty was 

$60. For a regular penalty assessment, 

the average penalty was $316. For a 

special assessment, the average penalty 

was $2,574. For special assessments 

issued to agents of the mine operator, 

the average assessment was $582; for 

special assessments involving a fatality, 

the average penalty was $27,181; and for 

all other special assessments, the 

average penalty was $2,385. 


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2The analysis in support of the proposed rule had 

a minor error in the formula for calculating history 

for repeat violations of the same standard, the effect 

of which was to slightly underestimate the impact 

of the proposed rule. The analysis also improperly 

assigned history points to operators with fewer than 

10 violations over a previous 15-month period, the 

effect of which was to slightly overestimate the 

impact of the proposed rule. These errors have been 

corrected in MSHA’s analysis of the final rule. The 

corrected estimate of total civil penalties under the 

proposed rule, assuming no compliance response 

by industry, is $70.0 million (rather than $68.5 

million); the average civil penalty is $600 (rather 

than $587); and the percentage increase of civil 

penalties is 182% (rather than 176%). 

Table III–3 shows that the average 

proposed penalty assessment in 2005 

generally tended to increase as mine 

size increased. The result is consistent, 

particularly for mine operators with 20 

or more employees. 

Table III–3 also indicates that the 

difference in average penalties between 

coal and metal and nonmetal mining 

operations of a given employment size 

and between independent contractors 

for a given employment size at coal and 

metal and nonmetal mines is generally 

small. 

2. Impact If No Compliance Response to 

Increased Penalties 

With the baseline established, the 

next task in the cost analysis is to 

determine the impact of the final rule on 

civil penalty assessments under the 

assumption that mine operators and 

independent contractors take no actions, 

in response to increased proposed 

penalty assessments, to increase 

compliance with MSHA standards and 

regulations. This task is an intermediate 

step in determining the total cost impact 

of the final rule, as MSHA’s assumption 

in III.B.3 of this preamble is that mine 

operators and independent contractors 

will change their compliance behavior 

in response to increased penalties. 

Given the assumption of no 

compliance response by mine operators 

and independent contractors, the 

number of violations would not change 

in response to the final rule. They 

would remain the same as presented in 

Table III–1 for the baseline. The type of 

the violations, however, will change 

under the final rule. In the analysis, all 

2005 regular and single penalty 

assessments will be issued as regular 

assessments under the final rule. MSHA 

assumed that most unwarrantable 

failure violations would be processed as 

regular assessments, but would receive 

at least the minimum penalty amounts 

required in the MINER Act. MSHA also 

assumed that violations issued to 

agents, those involving a fatality and 

processed as a special assessment in 

2005, those involving failure to 

promptly notify MSHA, and those 

determined to be flagrant will be 

processed as special assessments under 

the final rule. For purposes of this 

analysis, MSHA further assumed that all 

other 2005 special assessments will be 

processed as regular assessments. Thus, 

under the final rule, MSHA estimates 

that the number of special assessments 

will decline by 85%, from 3,189 to 491. 

MSHA anticipates that, under the final 

rule, the regular assessment provision 

will generally provide an appropriate 

penalty for most violations previously 

processed as special assessments. 

Equally significant, this will allow 

MSHA to focus its enforcement 

resources on more field enforcement 

activities, as opposed to administrative 

review activities. 

Tables III–4 and III–5 show the 

estimated total dollar amount and 

average dollar amount, respectively, of 

civil penalties under the final rule, 

assuming no compliance response by 

mine operators and independent 

contractors.2 Table III–6 shows, relative 

to the baseline, the estimated percentage 

increase of civil penalties (both total 

and average) under the final rule, 

assuming no compliance response by 

mine operators and independent 

contractors. All of these tables are 

disaggregated by employment size, coal 

and metal and nonmetal mining 

operations, and independent contractors 

at coal and metal and nonmetal mines. 


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As indicated in these tables, MSHA 

estimates that total civil penalty 

assessments will increase under the 

final rule, assuming no compliance 

response, from $24.9 million to $69.3 

million, an increase of $44.5 million, or 

179%. Approximately $2.5 million, or 

4%, will come from special 

assessments. Of the $44.5 million 

increase, approximately $1.9 million 

will result from the minimum penalty 

provisions for unwarrantable violations 

in the MINER Act. In its analysis of 

2005 data, MSHA found one violation 

which met the failure to provide timely 

notification provision in the MINER 

Act. For this category of violations, the 

MINER Act imposes a penalty of $5,000 

to $60,000. The particular violation, 

however, had already received a special 

assessment in excess of $5,000. Thus, 

MSHA did not adjust penalty totals to 

account for this provision of the MINER 

Act. 

MSHA has determined that flagrant 

violations will be processed under the 

special assessment provision. As stated 

in the final rule, MSHA will use the 

definition for flagrant violation in the 

MINER Act, but the Agency cannot 

estimate, at this point in the rulemaking 

process, the specific impact of this new 

requirement in the MINER Act. The 

Agency does, however, anticipate that 

penalties will increase due to this 

provision. 

MSHA estimates that the average 

penalty assessment will increase under 

the final rule, assuming no compliance 

response, from $213 (shown in Table 

III–3) to $594 (shown in Table III–5), an 

increase of 179% (shown in Table III–


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3MSHA included this sentence in the preamble 

and PREA for the proposed rule without the 

qualifying phrase ‘‘at the margin.’’ The phrase was 

added to address one commenter’s erroneous 

conclusion that the sentence implied [according to 

MSHA’s model] that a 99% decrease in the 

probability of a violation could be achieved by a 

330% increase in penalties. As MSHA indicated in 

both the PREA for the proposed rule and the REA 

for this final rule, MSHA’s constant elasticity 

formula, P = AQ(1/e) (where P = the penalty 

amount, Q = the number of violations, A is an 

arbitrary parameter, and e = elasticity = –0.3) can 

be used to derive (Q2/Q1) = (P2/P1)(¥0.3). Thus, 

for example, an increase in a penalty from $60 to 

$100 would be associated with a reduction in the 

frequency of that violation from 1.0 to 0.86 (a 14% 

reduction). And a 330% increase in a penalty 

would be associated with a reduction in the 

frequency of that violation, not of 99%, but of 35%. 

4The analysis in support of the proposed rule had 

a minor error in the formula for calculating history 

for repeat violations of the same standard, the effect 

of which was to slightly underestimate the impact 

of the proposed rule. The analysis also improperly 

assigned history points to operators with fewer than 

10 violations over a previous 15-month period, the 

effect of which was to slightly overestimate the 

impact of the proposed rule. These errors have been 

corrected in MSHA’s analysis of the final rule. The 

corrected estimate of total civil penalties under the 

proposed rule, after improved compliance response 

by industry, is $46.3 million (rather than $45.8 

million in the proposal); the additional 

expenditures to improve compliance are $9.2 

million (rather than $9.0 million); and the 

percentage increase after improved compliance 

response, is 86% (rather than 84%). 

6). Consistent with Congressional intent, 

the average penalty generally increases 

as mine size or contractor size increases 

(shown in Table III–5). 

For purposes of the analysis, special 

assessments that would be processed as 

special assessments under the final rule 

were assumed to receive the same 

penalty, unless they would be impacted 

by the minimum penalty provisions of 

the MINER Act. The average penalty for 

special assessments issued to agents of 

the mine operator is estimated to 

increase by 367% under the final rule. 

All of this increase is due to the 

application of the minimum penalty 

provisions for unwarrantable violations 

in the MINER Act. 

For purposes of analysis, MSHA 

assumes that all specially assessed 

violations, except those involving 

fatalities, agents, failure to timely notify 

MSHA, and flagrant violations, would 

be processed as regular assessments 

under the final rule. In the analysis, the 

average penalty increased by 98% for 

those 2005 special assessments that 

would be processed as regular 

assessments under the final rule. 

3. Impact With Improved Compliance 

Response to Increased Penalties 

MSHA intends and expects that 

increased penalty assessments will lead 

to efforts by mine operators and 

independent contractors to increase 

compliance with MSHA standards and 

regulations and ultimately to fewer 

violations and improved mine safety 

and health. MSHA assumes that each 

violation is associated with a probability 

of occurrence that declines as penalty 

assessments rise. To estimate this 

impact, MSHA assumes that, at the 

margin, each 10% increase in penalty 

for a violation is associated with a 3% 

decrease in its probability of 

occurrence.3

In economic terms, this is equivalent 

to assuming an elasticity of –0.3 

between the number of violations and 

the dollar size of penalties. This 

elasticity of –0.3 was assumed by MSHA 

in its regulatory economic analysis for 

the 2003 direct final rule to adjust civil 

penalties for inflation. 

MSHA has applied this assumption to 

each assessed violation in the 2005 

database. For most violations, the final 

rule will result in a penalty increase. 

Accordingly, MSHA has computed a 

reduction (or in rare cases, an increase) 

in the probability of the violation’s 

occurrence. The reduction is larger as 

the penalty increases. 

Tables III–7 and III–8 estimate the 

improved compliance response of the 

industry to increased penalty 

assessments.4 Table III–7 provides 

estimates for mine operators and Table 

III–8 provides estimates for independent 

contractors. Tables III–7 and III–8 show, 

by employment size, by coal and metal 

and nonmetal mining operations, and by 

independent contractors at coal and 

metal and nonmetal mines, the number 

of violations and the dollar amount of 

penalties in the 2005 database under the 

existing rule. Further, using the 

assumption that the elasticity of 

response is –0.3 for each violation, 

Tables III–7 and III–8 estimate the new 

reduced number of violations and the 

increased penalties associated with 

these violations under the final rule. 

Taking into account the mining 

industry’s improved compliance 

response, MSHA estimates that, were 

the final rule in effect in 2005, total 

violations would have declined from 

116,673 to 93,422, or a reduction of 

approximately 20%. 


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The ‘‘Increase in Penalties’’ column 

represents the increase in penalties, 

relative to the baseline, for remaining 

violations. The increase in proposed 

penalty assessments is approximately 

$17.1 million for coal mine operators, 


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$0.4 million for coal independent 

contractors, $4.2 million for metal and 

nonmetal mine operators, and $0.4 

million for metal and nonmetal 

independent contractors. The increase 

for all operators, $22.1 million, reflects 

the total increase in penalties for the 

final rule, taking into account mine 

operators’ improved compliance 

behavior. 

To reduce the number of violations in 

response to the increased penalty 

assessments, MSHA assumes that mines 

will increase expenditures to improve 

compliance with MSHA safety and 

health standards. (The REA for the final 

rule provides an explanation of how 

expenditures are calculated.) The 

column, ‘‘Additional Expenditures to 

Improve Compliance,’’ represents 

MSHA’s estimate of these expenditures. 

These estimates are based on the same 

assumption that the elasticity of 

response is ¥0.3 and the additional 

assumption that the increased 

compliance activities will be 

undertaken by the mining industry to 

avoid increased penalties. 

Table III–9 summarizes the impact of 

the final rule by mining sector and 

indicates that the combined impact of 

additional expenditures to improve 

compliance and the increase in 

penalties, given improved compliance is 

$31.5 million a year. 


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5Typically, multiple violations are combined into 

a single safety and health conference request. In 

2005, the 4,567 coal violations were reviewed in 

1,585 safety and health conferences, and the 4,720 

M/NM violations were reviewed in 1,123 safety and 

health conferences. In the text, the costs for a safety 

and health conference are estimated per violation, 

not per conference. 

6 Data from pp. 6, B3 of U.S. Coal Mines Salaries, 

Wages, and Benefits—2005 Survey Results, Western 

Mine Engineering Inc.; pp. 8, B2 of U.S. Metal and 

Industrial Mineral Mine Salaries, Wages, and 

Benefits—2005 Survey Results, Western Mine 

Engineering Inc.; and MSHA calculations. 

4. Impact of Increased Cost of Safety and 

Health Conferences 

Section 100.6 of 30 CFR allows all 

parties to request a safety and health 

conference with the district manager 

and designee. The final rule includes a 

new requirement in § 100.6(b) that the 

request for a safety and health 

conference be in writing and include a 

brief statement of the reason why each 

citation or order should be conferenced. 

MSHA data indicate that 9,287 

violations were conferenced in 2005–

4,567 by coal operators and contractors, 

and 4,720 by metal and nonmetal 

operators and contractors.5 For purposes 

of estimating costs, MSHA assumes that 

the annual number of safety and health 

conference requests will be the same, 

after the final rule takes effect (the 

reduced number of violations due to 

increased penalties and improved 

compliance offset by the additional 

incentive, due to increased penalties, to 

request a safety and health conference). 

Table III–10 shows the estimated 

number of written requests for a safety 

and health conference to review a 

violation, disaggregated by employment 

size, coal and metal and nonmetal 

operations, and independent contractors 

at coal and metal and nonmetal mines. 

MSHA estimates that it would take 

approximately 9 minutes per violation 

for a mine supervisor to prepare a 

written request for a safety and health 

conference. Because each request for a 

safety and health conference bundles 

together an average of between three 

and four violations, the 9 minutes per 

violation is equivalent to between 27 

and 36 minutes to prepare a written 

request for each safety and health 

conference. The hourly wage rate for a 

coal supervisor is $63.39; the hourly 

wage rate for a metal and nonmetal 

supervisor is $47.10.6 MSHA estimates 

that it will cost, on average, 

approximately $1 to submit each written 

request (by mail, fax, or e-mail). Based 

on this information, each written 

request for a conference would cost 

approximately $10.51 for a coal operator 

or contractor and $8.06 for a metal and 

nonmetal operator or contractor. Table 

III–11 provides MSHA’s estimate of the 

annual costs for coal and metal and 

nonmetal mine contactors and operators 

to make written requests for 

conferences. 


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7The average price for underground and surface 

coal of $36.42 and $17.37 per ton, respectively, 

comes from the U.S. Department of Energy, Energy 

Information Administration, ‘‘Annual Coal Report 

2005,’’ Table 28, October 2006. 

8U.S. Department of the Interior, U.S. Geological 

Survey, ‘‘Mineral Commodity Summaries 2006,’’ p. 

8, January 2006 

C. Benefits 

The benefits of the final rule are the 

reduced number of injuries and 

fatalities that would result from 

improved compliance with MSHA’s 

health and safety standards and 

regulations in response to increased 

penalty assessments. MSHA projects 

that increased penalties will induce 

mine operators to reduce all safety and 

health violations. The reduction in all 

violations, and particularly S&S 

violations, or those reasonably likely to 

result in reasonably serious injury or 

illness, will reduce the number and 

severity of injuries and illnesses. 

IV. Feasibility 

MSHA has concluded that the 

requirements of the final rule are 

technologically and economically 

feasible. 

A. Technological Feasibility 

The final rule is a regulation, not a 

standard. It does not involve activities 

on the frontiers of scientific knowledge. 

The mining industry has been 

complying with the adjudication and 

payment of civil penalties for decades. 

MSHA concludes, therefore, that the 

final rule is technologically feasible. 

B. Economic Feasibility 

MSHA estimates that the yearly 

increased compliance costs and penalty 

assessments for coal mines as a result of 

the final rule will be $25.1 million 

dollars, which is equal to approximately 

0.09 percent of coal mine sector 

revenues of $26.7 billion in 2005. 

MSHA estimates that the yearly 

increased compliance costs and penalty 

assessments for metal and nonmetal 

mines as a result of the final rule will 

be $6.5 million dollars, which is equal 

to approximately 0.01 percent of metal 

and nonmetal mine sector revenues of 

$51.5 billion in 2005. Penalty 

assessment estimates for both coal and 

metal and nonmetal include MSHA’s 

assumption that mine operators will 

change their behavior and improve 

compliance as a result of increased 

penalties, and thereby receive fewer 

violations. Since the total estimated 

increased penalty assessments for both 

the coal and metal and nonmetal mine 

operators are well below one percent of 

their estimated revenue, MSHA 

concludes that the final rule is 

economically feasible for the mining 

industry. 

V. Regulatory Flexibility Act and Small 

Business Regulatory Enforcement 

Fairness Act (SBREFA) 

Pursuant to the Regulatory Flexibility 

Act (RFA) of 1980, as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA), MSHA has 

analyzed the impact of the final rule on 

small entities. Based on that analysis, 

MSHA certifies that the final rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The factual basis for this 

certification is presented below. 

A. Definition of a Small Mine 

Under the RFA, in analyzing the 

impact of a final rule on small entities, 

MSHA must use the Small Business 

Administration’s (SBA) definition for a 

small entity, or after consultation with 

the SBA Office of Advocacy, establish 

an alternative definition for the mining 

industry by publishing that definition in 

the Federal Register for notice and 

comment. MSHA has not established an 

alternate definition, and hence is 

required to use the SBA definition. The 

SBA defines a small entity in the mining 

industry as an establishment with 500 

or fewer employees (13 CFR 121.201). 

MSHA has also examined the impact 

of agency rules on a subset of mines 

with 500 or fewer employees—mines 

with fewer than 20 employees, which 

MSHA and the mining community have 

traditionally referred to as ‘‘small 

mines.’’ These small mines differ from 

larger mines not only in the number of 

employees, but also in economies of 

scale in material produced, in the type 

and amount of production equipment, 

and in supply inventory. Therefore, 

their costs of complying with MSHA’s 

rules and the impact of the agency’s 

rules on them will also tend to be 

different. It is for this reason that ‘‘small 

mines,’’ as traditionally defined by 

MSHA as those employing fewer than 

20 workers, are of special concern to 

MSHA. In addition, for this final rule, 

MSHA has examined the cost on mines 

with five or fewer employees to ensure 

that this subset of mines is not 

significantly and adversely impacted by 

the final rule. 

This analysis complies with the legal 

requirements of the RFA for an analysis 

of the impact on ‘‘small entities’’ while 

continuing MSHA’s traditional 

definition of ‘‘small mines.’’ Both the 

final rule and this analysis also reflect 

MSHA’s concern for mines with five or 

fewer employees. MSHA concludes that 

it can certify that the final rule will not 

have a significant economic impact on 

a substantial number of small entities. 

MSHA has determined that this is the 

case for mines with fewer than 20 

employees and mines with 500 or fewer 

employees. In its detailed factual basis 

below, MSHA will also show the impact 

of the final rule on mines with five or 

fewer employees. 

B. Factual Basis for Certification 

MSHA’s analysis of the economic 

impact on ‘‘small entities’’ begins with 

a ‘‘screening’’ analysis. The screening 

compares the estimated costs of a rule 

for small entities to the estimated 

revenue. When estimated costs are less 

than one percent of estimated revenue 

(for the size categories considered), 

MSHA believes it is generally 

appropriate to conclude that there is no 

significant economic impact on a 

substantial number of small entities. If 

estimated costs are equal to or exceed 

one percent of revenue, it tends to 

indicate that further analysis may be 

warranted. 

Normally, the analysis of the costs or 

economic impact of a rule assumes that 

mine operators are in 100% compliance 

with a rule. Under the assumption that 

mine operators are in 100% compliance 

with all of MSHA’s rules, there would 

be no cost of compliance with the final 

rule, since no mine operator would be 

liable for civil penalties. For purposes of 

analyzing the effects on small mines, 

MSHA reverses this usual assumption 

and instead analyzes the increased 

penalty assessments for mines not in 

compliance with the agency’s safety and 

health standards and regulations. 

Total underground and surface coal 

production was 368 million tons and 

765 million tons, respectively. The 2005 

price of underground and surface coal 

was $36.42 and $17.37 per ton, 

respectively.7 Thus, total estimated coal 

revenue in 2005 was $26.7 billion ($13.4 

billion for underground and $13.3 

billion for surface production). Using 

the same approach, the estimated 2005 

coal revenue by employment size 

category is estimated to be 

approximately $75 million for mines 

with 1–5 employees, $657 million for 

mines with 1–19 employees, and $20.5 

billion for mines with 1–500 employees. 

For metal and nonmetal mines, the 

total 2005 estimated revenue generated 

by the metal and nonmetal industry 

($51.5 billion)8 was divided by the total 

number of employee hours to arrive at 

the average revenue per hour of 

employee production ($165.19). The 

$165.19 was multiplied by employee 

hours in specific mine size categories to 

arrive at estimated revenue for these 

categories. This approach was used to 

determine the estimated revenue for the 

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because MSHA does not collect data on 

metal and nonmetal production. The 

2005 metal and nonmetal revenue is 

estimated to be approximately $3.4 

billion for mines with 1–5 employees, 

$15.6 billion for mines with 1–19 

employees, and $46.5 billion for mines 

with 1–500 employees. 

Table V–1 below shows that when 

dividing the increase in penalties and 

safety and health conference costs by 

the revenue in each mine size category, 

the cost of the rule for coal mines is 

0.46% of revenue for mines with 1–5 

employees, 0.25% of revenue for mines 

with 1–19 employees, and 0.11% of 

revenue for mines with 1–500 

employees. Table V–1 also shows the 

penalty and cost increase as a 

percentage of revenue for all coal mines 

to be 0.09%. 

Table V–1 also shows that when 

dividing the increase in penalties and 

safety and health conference costs by 

the revenue in each mine size category, 

the cost of the rule for metal and 

nonmetal mines is 0.03% of revenue for 

mines with 1–5 employees, 0.01% of 

revenue for mines with 1–19 employees, 

and 0.01% of revenue for mines with 1–

500 employees. Table V–1 shows the 

penalty and cost increase as a 

percentage of revenue for all metal and 

nonmetal mines to be 0.01%. 

For coal mines, Table V–1 further 

shows that the final rule will result in 

an average increase in costs and 

penalties per mine of: $619 for mines 

with 1–5 employees; $1,405 for mines 

with 1–19 employees; and $10,821 for 

mines with 500 or fewer employees. For 

metal and nonmetal mines, Table V–1 

shows that the final rule will result in 

an average increase in costs and 

penalties per mine of: $149 for mines 

with 1–5 employees; $213 for mines 

with 1–19 employees; and $457 for 

mines with 500 or fewer employees. 

As shown in Table V–1, when 

applying MSHA’s and SBA’s definitions 

of small mines, yearly costs of the final 

rule are substantially less than one 

percent of estimated yearly revenue, 

well below the level suggesting that the 

rule might have a significant economic 

impact on a substantial number of small 

entities. Accordingly, MSHA has 

certified that the final rule will not have 

a significant economic impact on a 

substantial number of small entities that 

are covered by the rule. 

VI. Paperwork Reduction Act of 1995 

This final rule contains no 

information collection requirements 

subject to review by the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act (PRA). 

Revised paragraph (b) in § 100.6 

requires that a request for a safety and 

health conference be in writing and 

include a brief statement of the reason 

that each citation or order should be 

conferenced. MSHA views this new 

provision as an administrative action 

that is not subject to the PRA. 

VII. Other Regulatory Considerations 

A. Unfunded Mandates Reform Act of 

1995 

The final rule does not include any 

Federal mandate that may result in 

increased expenditures by State, local, 

or tribal governments; nor does it 

increase private sector expenditures by 

more than $100 million annually; nor 

does it significantly or uniquely affect 

small governments. Accordingly, the 

Unfunded Mandates Reform Act of 1995 

(2 U.S.C. 1501 et seq.) requires no 

further agency action or analysis. 

B. Treasury and General Government 

Appropriations Act of 1999: Assessment 

of Federal Regulations and Policies on 

Families 

The final rule will have no effect on 

family well-being or stability, marital 

commitment, parental rights or 

authority, or income or poverty of 

families and children. Accordingly, 

§ 654 of the Treasury and General 

Government Appropriations Act of 1999 

(5 U.S.C. 601 note) requires no further 

agency action, analysis, or assessment. 

C. Executive Order 12630: Government 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

The final rule will not implement a 

policy with takings implications. 

Accordingly, Executive Order 12630, 

Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights, requires no further agency action 

or analysis. 

D. Executive Order 12988: Civil Justice 

Reform 

The final rule was drafted and 

reviewed in accordance with Executive 

Order 12988, Civil Justice Reform. The 

final rule was written to provide a clear 

legal standard for affected conduct and 

was carefully reviewed to eliminate 

drafting errors and ambiguities, so as to 

minimize litigation and undue burden 

on the Federal court system. MSHA has 

determined that the final rule meets the 


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applicable standards provided in § 3 of 

Executive Order 12988. 

E. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The final rule will have no adverse 

impact on children. Accordingly, 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks, as amended by 

Executive Orders 13229 and 13296, 

requires no further agency action or 

analysis. 

F. Executive Order 13132: Federalism 

The final rule does not have 

‘‘federalism implications’’ because it 

does not ‘‘have substantial direct effects 

on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

Accordingly, Executive Order 13132, 

Federalism, requires no further agency 

action or analysis. 

G. Executive Order 13175: Consultation 

and Coordination With Indian 

Governments 

The final rule does not have ‘‘tribal 

implications’’ because it does not ‘‘have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes.’’

Accordingly, Executive Order 13175, 

Consultation and Coordination with 

Indian Tribal Governments, requires no 

further agency action or analysis. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

The final rule has been reviewed for 

its impact on the supply, distribution, 

and use of energy because it applies to 

the coal mining industry. Insofar as the 

final rule will result in added yearly 

compliance costs and civil penalty 

assessments of approximately $25.1 

million to the coal mining industry, 

relative to annual revenue of $26.7 

billion in 2005, it is not a ‘‘significant 

energy action’’ because it is not ‘‘likely 

to have a significant adverse effect on 

the supply, distribution, or use of 

energy * * * (including a shortfall in 

supply, price increases, and increased 

use of foreign supplies).’’ Accordingly, 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use, requires no further 

Agency action or analysis. 

I. Executive Order 13272: Proper 

Consideration of Small Entities in 

Agency Rulemaking 

MSHA has thoroughly reviewed the 

final rule to assess and take appropriate 

account of its potential impact on small 

businesses, small governmental 

jurisdictions, and small organizations. 

MSHA has determined and certified that 

the final rule will not have a significant 

economic impact on a substantial 

number of small entities. 

List of Subjects in 30 CFR Part 100 

Mine safety and health, Penalties. 

Dated: March 15, 2007. 

Richard E. Stickler, 

Assistant Secretary for Mine Safety and 

Health. 

■ For the reasons set out in the 

preamble and under the authority of the 

Mine Safety and Health Act of 1977, as 

amended, Chapter I of Title 30, Code of 

Federal Regulations, part 100 is revised 

to read as follows: 

PART 100—CRITERIA AND 

PROCEDURES FOR PROPOSED 

ASSESSMENT OF CIVIL PENALTIES 

Sec. 

100.1 Scope and purpose. 

100.2 Applicability. 

100.3 Determination of penalty amount; 

regular assessment. 

100.4 Unwarrantable failure. 

100.5 Determination of penalty amount; 

special assessment. 

100.6 Procedures for review of citations and 

orders; procedures for assessment of civil 

penalties and conferences. 

100.7 Notice of proposed penalty; notice of 

contest. 

100.8 Service. 

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

§ 100.1 Scope and purpose. 

This part provides the criteria and 

procedures for proposing civil penalties 

under sections 105 and 110 of the 

Federal Mine Safety and Health Act of 

1977 (Mine Act). The purpose of this 

part is to provide a fair and equitable 

procedure for the application of the 

statutory criteria in determining 

proposed penalties for violations, to 

maximize the incentives for mine 

operators to prevent and correct 

hazardous conditions, and to assure the 

prompt and efficient processing and 

collection of penalties. 

§ 100.2 Applicability. 

The criteria and procedures in this 

part are applicable to all proposed 

assessments of civil penalties for 

violations of the Mine Act and the 

standards and regulations promulgated 

pursuant to the Mine Act, as amended. 

MSHA shall review each citation and 

order and shall make proposed 

assessments of civil penalties. 

§ 100.3 Determination of penalty amount; 

regular assessment. 

(a) General. (1) Except as provided in 

§ 100.5(e), the operator of any mine in 

which a violation occurs of a mandatory 

health or safety standard or who violates 

any other provision of the Mine Act, as 

amended, shall be assessed a civil 

penalty of not more than $60,000. Each 

occurrence of a violation of a mandatory 

safety or health standard may constitute 

a separate offense. The amount of the 

proposed civil penalty shall be based on 

the criteria set forth in sections 105(b) 

and 110(i) of the Mine Act. These 

criteria are: 

(i) The appropriateness of the penalty 

to the size of the business of the 

operator charged; 

(ii) The operator’s history of previous 

violations; 

(iii) Whether the operator was 

negligent; 

(iv) The gravity of the violation; 

(v) The demonstrated good faith of the 

operator charged in attempting to 

achieve rapid compliance after 

notification of a violation; and 

(vi) The effect of the penalty on the 

operator’s ability to continue in 

business. 

(2) A regular assessment is 

determined by first assigning the 

appropriate number of penalty points to 

the violation by using the appropriate 

criteria and tables set forth in this 

section. The total number of penalty 

points will then be converted into a 

dollar amount under the penalty 

conversion table in paragraph (g) of this 

section. The penalty amount will be 

adjusted for demonstrated good faith in 

accordance with paragraph (f) of this 

section. 

(b) The appropriateness of the penalty 

to the size of the business of the 

operator charged. The appropriateness 

of the penalty to the size of the mine 

operator’s business is calculated by 

using both the size of the mine cited and 

the size of the mine’s controlling entity. 

The size of coal mines and their 

controlling entities is measured by coal 

production. The size of metal and 

nonmetal mines and their controlling 

entities is measured by hours worked. 

The size of independent contractors is 

measured by the total hours worked at 

all mines. Penalty points for size are 

assigned based on Tables I to V. As used 

in these tables, the terms ‘‘annual 

tonnage’’ and ‘‘annual hours worked’’

mean coal produced and hours worked 

in the previous calendar year. In cases 

where a full year of data is not available, 

the coal produced or hours worked is 


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prorated to an annual basis. This criterion accounts for a maximum of 25 

penalty points. 


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(c) History of previous violations. An 

operator’s history of previous violations 

is based on both the total number of 

violations and the number of repeat 

violations of the same citable provision 

of a standard in a preceding 15-month 

period. Only assessed violations that 

have been paid or finally adjudicated, or 

have become final orders of the 

Commission will be included in 

determining an operator’s history. The 

repeat aspect of the history criterion in 

paragraph (c)(2) of this section applies 

only after an operator has received 10 

violations or an independent contractor 

operator has received 6 violations. 

(1) Total number of violations. For 

mine operators, penalty points are 

assigned on the basis of the number of 

violations per inspection day 

(VPID)(Table VI). Penalty points are not 

assigned for mines with fewer than 10 

violations in the specified history 

period. For independent contractors, 

penalty points are assigned on the basis 

of the total number of violations at all 

mines (Table VII). This aspect of the 

history criterion accounts for a 

maximum of 25 penalty points. 


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(2) Repeat violations of the same 

standard. Repeat violation history is 

based on the number of violations of the 

same citable provision of a standard in 

a preceding 15-month period. For coal 

and metal and nonmetal mine operators 

with a minimum of six repeat 

violations, penalty points are assigned 

on the basis of the number of repeat 

violations per inspection day (RPID) 

(Table VIII). For independent 

contractors, penalty points are assigned 

on the basis of the number of violations 

at all mines (Table IX). This aspect of 

the history criterion accounts for a 

maximum of 20 penalty points (Table 

VIII). 


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(d) Negligence. Negligence is conduct, 

either by commission or omission, 

which falls below a standard of care 

established under the Mine Act to 

protect miners against the risks of harm. 

Under the Mine Act, an operator is held 

to a high standard of care. A mine 

operator is required to be on the alert for 

conditions and practices in the mine 

that affect the safety or health of miners 

and to take steps necessary to correct or 

prevent hazardous conditions or 

practices. The failure to exercise a high 

standard of care constitutes negligence. 

The negligence criterion assigns penalty 

points based on the degree to which the 

operator failed to exercise a high 

standard of care. When applying this 

criterion, MSHA considers mitigating 

circumstances which may include, but 

are not limited to, actions taken by the 

operator to prevent or correct hazardous 

conditions or practices. This criterion 

accounts for a maximum of 50 penalty 

points, based on conduct evaluated 

according to Table X. 

(e) Gravity. Gravity is an evaluation of 

the seriousness of the violation. This 

criterion accounts for a maximum of 88 

penalty points, as derived from the 

Tables XI through XIII. Gravity is 

determined by the likelihood of the 

occurrence of the event against which a 

standard is directed; the severity of the 

illness or injury if the event has 

occurred or was to occur; and the 

number of persons potentially affected if 

the event has occurred or were to occur. 


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(f) Demonstrated good faith of the 

operator in abating the violation. This 

criterion provides a 10% reduction in 

the penalty amount of a regular 

assessment where the operator abates 

the violation within the time set by the 

inspector. 

(g) Penalty conversion table. The 

penalty conversion table is used to 

convert the total penalty points to a 

dollar amount. 


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(h) The effect of the penalty on the 

operator’s ability to continue in 

business. MSHA presumes that the 

operator’s ability to continue in 

business will not be affected by the 

assessment of a civil penalty. The 

operator may, however, submit 

information to the District Manager 

concerning the financial status of the 

business. If the information provided by 

the operator indicates that the penalty 

will adversely affect the operator’s 

ability to continue in business, the 

penalty may be reduced. 

§ 100.4 Unwarrantable failure. 

(a) The minimum penalty for any 

citation or order issued under section 

104(d)(1) of the Mine Act shall be 

$2,000. 

(b) The minimum penalty for any 

order issued under section 104(d)(2) of 

the Mine Act shall be $4,000. 

§ 100.5 Determination of penalty amount; 

special assessment. 

(a) MSHA may elect to waive the 

regular assessment under § 100.3 if it 

determines that conditions warrant a 

special assessment. 

(b) When MSHA determines that a 

special assessment is appropriate, the 

proposed penalty will be based on the 

six criteria set forth in § 100.3(a). All 

findings shall be in narrative form. 

(c) Any operator who fails to correct 

a violation for which a citation has been 

issued under section 104(a) of the Mine 

Act within the period permitted for its 

correction may be assessed a civil 

penalty of not more than $6,500 for each 

day during which such failure or 

violation continues. 

(d) Any miner who willfully violates 

the mandatory safety standards relating 

to smoking or the carrying of smoking 

materials, matches, or lighters shall be 

subject to a civil penalty which shall not 

be more than $275 for each occurrence 

of such violation. 

(e) Violations that are deemed to be 

flagrant under section 110(b)(2) of the 

Mine Act may be assessed a civil 

penalty of not more than $220,000. For 

purposes of this section, a flagrant 

violation means ‘‘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.’’

(f) The penalty for failure to provide 

timely notification to the Secretary 

under section 103(j) of the Mine Act 

will be not less than $5,000 and not 

more than $60,000 for the following 

accidents: 

(1) The death of an individual at the 

mine, or 

(2) An injury or entrapment of an 

individual at the mine which has a 

reasonable potential to cause death. 

§ 100.6 Procedures for review of citations 

and orders; procedures for assessment of 

civil penalties and conferences. 

(a) All parties shall be afforded the 

opportunity to review with MSHA each 

citation and order issued during an 

inspection. It is within the sole 

discretion of MSHA to grant a request 

for a conference and to determine the 

nature of the conference. 

(b) Upon notice by MSHA, all parties 

will have 10 days within which to 

submit additional information or 

request a safety and health conference 

with the District Manager or designee. A 

conference request may include a 

request to be notified of, and to 

participate in, a conference initiated by 

another party. A conference request 

must be in writing and must include a 

brief statement of the reason why each 

citation or order should be conferenced. 

(c) When a conference is conducted, 

the parties may submit any additional 

relevant information relating to the 

violation, either prior to or at the 

conference. To expedite the conference, 

the official assigned to the case may 

contact the parties to discuss the issues 

involved prior to the conference. 

(d) MSHA will consider all relevant 

information submitted in a timely 

manner by the parties with respect to 

the violation. When the facts warrant a 

finding that no violation occurred, the 

citation or order will be vacated. Upon 

conclusion of the conference, or 

expiration of the conference request 

period, all citations that are abated and 

all orders will be promptly referred to 

MSHA’s Office of Assessments. The 

Office of Assessments will use the 

citations, orders, and inspector’s 

evaluation as the basis for determining 

the appropriate amount of a proposed 

penalty. 

§ 100.7 Notice of proposed penalty; notice 

of contest. 

(a) A notice of proposed penalty will 

be issued and served by certified mail, 

or the equivalent, upon the party to be 

charged and by regular mail to the 

representative of miners at the mine 

after the time permitted to request a 

conference under § 100.6 expires, or 

upon the completion of a conference, or 

upon review by MSHA of additional 

information submitted in a timely 

manner. 

(b) Upon receipt of the notice of 

proposed penalty, the party charged 

shall have 30 days to either: 

(1) Pay the proposed assessment. 

Acceptance by MSHA of payment 

tendered by the party charged will close 

the case. 

(2) Notify MSHA in writing of the 

intention to contest the proposed 

penalty. When MSHA receives the 

notice of contest, it advises the Federal 

Mine Safety and Health Review 

Commission (Commission) of such 

notice. No proposed penalty which has 

been contested before the Commission 

shall be compromised, mitigated or 

settled except with the approval of the 

Commission. 

(c) If the proposed penalty is not paid 

or contested within 30 days of receipt, 

the proposed penalty becomes a final 

order of the Commission and is not 

subject to review by any court or 

agency. 

§ 100.8 Service. 

(a) All operators are required by part 

41 (Notification of Legal Identity) of this 

chapter to file with MSHA the name and 

address of record of the operator. All 

representatives of miners are required 

by part 40 (Representative of Miners) of 

this chapter to file with MSHA the 

mailing address of the person or 

organization acting in a representative 

capacity. Proposed penalty assessments 

delivered to those addresses shall 

constitute service. 

(b) If any of the parties choose to have 

proposed penalty assessments mailed to 

a different address, the Office of 

Assessments must be notified in writing 

of the new address. Delivery to this 

address shall also constitute service. 

(c) Service for operators who fail to 

file under part 41 of this chapter will be 

upon the last known business address 

recorded with MSHA. 

[FR Doc. 07–1402 Filed 3–21–07; 8:45 am] 

BILLING CODE 4510–43–P 


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