47330 Federal Register / Vol. 62, No. 173 / Monday, September 8, 1997 / Proposed Rules

DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 100

RIN 1219–AA49

Criteria and Procedures for Proposed

Assessment of Civil Penalties

AGENCY: Mine Safety and Health

Administration, Labor.

ACTION: Proposed rule.

SUMMARY: This proposed rule revises the

Mine Safety and Health

Administration’s (MSHA’s) existing

civil penalty assessment amounts under

part 100. The proposal also adds a new

provision which would codify the civil

penalty amounts that may be assessed

under Sections 110(a), 110(b), and

110(g) of the Federal Mine Safety and

Health Act of 1977 (Mine Act). These

changes are made as a result of a

mandate by Congress in the Debt

Collection Improvement Act of 1996,

which requires that all civil penalties be

increased by up to 10 percent, and that

they be adjusted at least once every four

years thereafter according to the formula

specified in the Federal Civil Penalties

Inflation Adjustment Act of 1990

(Inflation Adjustment Act).

DATES: Written comments must be

submitted on or before November 7,

1997.

ADDRESSES: Comments on the proposed

rule may be transmitted by electronic

mail, fax, or mail. Comments by

electronic mail must be clearly

identified as such and sent to this e-mail

address: psilvey@msha.gov. Comments

by fax must be clearly identified as such

and sent to: Mine Safety and Health

Administration, Office of Standards,

Regulations, and Variances, 703–235–

5551. Send mail comments to: Mine

Safety and Health Administration,

Office of Standards, Regulations, and

Variances, Room 621, 4015 Wilson

Boulevard, Arlington, Virginia 22203–

1984. Interested persons are encouraged

to supplement written comments with

computer files or disks; please contact

the Agency with any questions about

format.

FOR FURTHER INFORMATION CONTACT:

Patricia W. Silvey, Director; Office of

Standards, Regulations and Variances,

MSHA; 703–235-1910 (voice), 703–235–

5551 (facsimile), psilvey@msha.gov

(Internet e-mail).

SUPPLEMENTARY INFORMATION:

I. Rulemaking Background

Under Sections 105(a) and 110 of the

Mine Act, MSHA is required to assess

a civil penalty for each violation of the

Mine Act and the mandatory safety and

health standards promulgated by the

Agency. The Mine Act originally

provided in 1977 that the penalty for

each violation would not exceed

$10,000, and that the maximum penalty

for failure to correct a violation cited

under Section 104(a) within the period

permitted for its correction would not

exceed $1,000 for each day that the

violation continued. Miners who

willfully violated the mandatory safety

standards relating to smoking or the

carrying of smoking materials into a

mine would be assessed a civil penalty

of not more than $250 for each

violation.

MSHA promulgated its first

regulations relating to civil penalty

assessments under the Mine Act on May

30, 1978 (43 FR 23514). This rule

included a penalty conversion table for

regular assessments based on the six

criteria enumerated in 30 CFR 100.3(a).

On May 21, 1982 (47 FR 22286), MSHA

promulgated a rule that revised its

regular assessment civil penalty table,

further defined the criteria for issuing

special assessments, and created a $20

single penalty assessment for those

violations that were not reasonably

likely to result in reasonably serious

injury or illness and which were abated

in a timely manner. There was no

provision in either rule relating to civil

penalties assessed for failing to abate

violations of the Mine Act or for

smoking or carrying smoking materials

into a mine, as these penalty amounts

were set by the Mine Act.

On November 5, 1990, the Omnibus

Budget Reconciliation Act of 1990

(Budget Act), Pub.L. 101–508, was

signed into law. Section 3102 of the

Budget Act amended the Mine Act and

raised the maximum MSHA civil

penalty per violation from $10,000 to

$50,000. The $1,000 per day civil

penalty for failure to correct a violation

under Section 104(a) was raised to

$5,000 per day. The miner smoking

penalty remained at $250. Following the

passage of the Budget Act, MSHA

published a final rule on January 24,

1992 (57 FR 2968), as amended

December 21, 1992 (57 FR 60690),

which implemented the penalty

increases prescribed by the Budget Act

and accounted for inflation since 1982.

A new civil penalty conversion table

was published and the single penalty

assessment was also raised to $50 by

this final rule.

Also in 1990, Congress passed P.L.

101–410, the Inflation Adjustment Act.

On April 26, 1996, the Omnibus

Consolidated Rescissions and

Appropriations Act of 1996 (OCRAA),

Pub.L. 104–131, was passed. Chapter 10

of the OCRAA, titled as the ‘‘Debt

Collection Improvement Act of 1996’’

(DCIA), modifies the Inflation

Adjustment Act and requires that the

head of each agency adjust by regulation

each civil monetary penalty provided

for by law within its jurisdiction

pursuant to the inflation adjustment

described under Section 5 of the DCIA.

The first adjustment of a civil monetary

penalty may not exceed 10 percent of

the existing penalty. The revised civil

penalties will apply only to those

violations occurring after the date the

final rule takes effect.

II. Discussion and Summary of the

Proposed Rule

A. General Discussion

MSHA is required by law to assess a

civil penalty for each violation of the

Mine Act or its regulations. The civil

penalties are intended to serve as a

means of encouraging mine operators to

comply with the law and to deter them

from allowing hazardous or unhealthy

conditions to exist in their mines. In

1990, the maximum civil penalty that

could be assessed for each violation of

the Mine Act was raised from $10,000

to $50,000 under the Budget Act. MSHA

issued regulations reflecting this

increase on January 24, 1992 (57 FR

2968), as amended December 21, 1992

(57 FR 60690).

When Congress originally passed the

Inflation Adjustment Act in 1990, the

legislative history stated:

In the past 60 years, but most notably in

the last 25 years, Congress has enacted

numerous statutes intended to regulate

conduct deemed harmful to the health and

welfare of the U.S. citizenry. Typically, such

statutes include provision for civil fines

(‘‘civil monetary penalties’’) to be used both

to punish and to deter violations of the

statute.

Recent studies, however, suggest that the

desired impact of these penalties has eroded

over time due to the failure to adjust civil

penalties to keep pace with inflation. Thus,

for example, where penalties to enforce

workplace safety have remained unchanged

since the enactment of the Occupational

Health and Safety Act in 1970, such penalties

have been effectively reduced to one-third of

their original value if one takes into account

the intervening rate of inflation.

In passing the DCIA, Congress again

demonstrated its concern that civil

penalties continue to have the same

impact as was originally intended.

MSHA is increasing its civil penalties in

order to comply with Congress’ mandate

that agencies make inflation

adjustments in their civil penalties.

Under the DCIA, MSHA is required to

increase these civil penalties by an
Federal Register / Vol. 62, No. 173 / Monday, September 8, 1997 / Proposed Rules 47331

amount not to exceed 10 percent. The

amount of the increase is determined by

the formula found in Section 5 of the

Inflation Adjustment Act. Under Section

5, civil monetary penalties are to be

increased by a cost-of-living adjustment.

The statute defines ‘‘cost-of-living

adjustment’’ as the percentage by which

the Consumer Price Index for the month

of June of the calendar year preceding

the adjustment exceeds the Consumer

Price Index for the month of June of the

calendar year in which the amount of

such civil monetary penalty was last set

or adjusted. The term ‘‘Consumer Price

Index’’ (CPI) means the Consumer Price

Index for all-urban consumers

published by the Department of Labor.

In order to determine the current costof-living adjustment for MSHA’s civil

penalties, MSHA made the following

calculations:

469.5 (the CPI for the month of June

1996, the calendar year preceding

the current adjustment.)

419.9 (the CPI for the month of June

1992, the calendar year in which

the MSHA civil penalties were last

adjusted)

469.5/419.9 = 1.12 (inflation

adjustment factor)

By using the 1.12 inflation adjustment

factor, MSHA would in effect increase

its civil penalty assessments by 12

percent. However, because Congress has

imposed a cap on the maximum

increase of 10 percent, the increases

contained within this rule would not

exceed 10 percent.

In order to determine the current costof-living adjustment for the miner

smoking penalty, MSHA made the

following calculations:

469.5 (the CPI for the month of June

1996, the calendar year preceding

the current adjustment.)

195.3 (the CPI for the month of June

1978, the calendar year in which

the civil penalty was last adjusted)

469.5/195.3 = 2.4 (inflation adjustment

factor)

Using the inflation adjustment factor

of 2.4, MSHA would have to increase

the miner smoking penalty 140 percent.

However, as stated above, Congress has

imposed a 10 percent cap on civil

penalty increases. Therefore, all civil

penalties under this proposal have been

adjusted by multiplying each penalty by

1.10 (a 10 percent increase) and

rounding to the nearest dollar.

B. Section-by-Section Analysis

The following section-by-section

analysis explains the proposed rule and

its effect on existing standards. The

standards in part 100 apply to all mine

operators.

Section 100.3 Determination of

Penalty Amount; Regular Assessment

Paragraph (a) of this standard would

be amended to codify Section 110(a) of

the Mine Act. This revision would also

reflect the increase of the maximum

civil penalty to $55,000 per violation.

Paragraph (g) of this standard would set

forth a revised penalty conversion table

in which points assigned for each of the

criteria enumerated in this section are

totaled and a correlating civil penalty is

assessed. Using the 10 percent

maximum penalty increase prescribed

by the DCIA, the civil penalty

conversion table found in this section

would be adjusted to reflect civil

penalties ranging from $66 to $55,000.

Section 100.4 Determination of

Penalty; Single Penalty Assessment

The single penalty assessment under

this section would increase from $50 to

$55, which reflects a 10 percent

maximum increase.

Section 100.5 Determination of

Penalty; Special Assessment

This section pertains to violations

which are of such a nature or

seriousness that MSHA cannot

determine an appropriate penalty using

the regular assessment formula or the

single assessment provision. This

section also addresses penalties which

may be assessed to an operator for

failure to correct a violation within the

period required. Finally, this section

addresses penalties which may be

assessed for miners who willfully use or

carry smoking materials underground.

The special assessment penalty is

determined by experienced Agency

mine safety and health specialists, based

on the facts and circumstances of each

case. Prior to a special assessment,

Agency field personnel review certain

categories of violations for special

assessment.

The civil penalty provisions found in

Sections 110(b) and 110(g) of the Mine

Act would be codified under this

section. The maximum civil penalty for

failure to correct a violation for which

a citation has been issued under Section

104(a) of the Mine Act would be

increased to $5,500 per violation per

day. The maximum civil penalty for

willful violation of mandatory standards

pertaining to smoking or carrying of

smoking materials into a mine by any

miner would be raised to $275 per

violation.

IV. Executive Order 12866

In accordance with Executive Order

12866, MSHA has prepared a

preliminary Regulatory Impact Analysis

(RIA) of the estimated costs and benefits

associated with the proposed revisions

of the criteria and procedures for

proposed assessment of civil penalties.

The preliminary RIA containing this

analysis is available from MSHA. MSHA

welcomes comments on its analysis and

methodology. The Agency estimates that

the proposal would cost the mining

industry slightly more than $3 million

annually. All penalties collected by

MSHA are deposited in the U.S.

Treasury.

Based upon the RIA, MSHA has

determined that this rule is not an

economically significant regulatory

action pursuant to section 3(f)(1) of

Executive Order 12866.

V. Paperwork Reduction Act

This proposed rule contains no

information collections which are

subject to review by the Office of

Management and Budget (OMB) under

the Paperwork Reduction Act of 1995.

VI. Regulatory Flexibility Act

In accordance with § 605 of the

Regulatory Flexibility Act (RFA), MSHA

certifies that the civil penalty proposal

does not have a significant economic

impact on a substantial number of small

entities. This proposed regulation does

no more than to codify existing law and

to mechanically increase certain civil

money penalties to account for inflation,

pursuant to specific directions set forth

in the Federal Civil Penalties Inflation

Adjustment Act, as amended. The

statute specifies the procedure for

calculating the adjusted civil money

penalties and does not allow the

Department to vary the calculation to

minimize the effect on small entities.

Moreover, the actual amount of the

increase in penalties would not meet the

threshold set forth in the Regulatory

Flexibility Act. MSHA discusses its

quantitative analysis warranting this

conclusion below.

In the past, MSHA considered small

mines to be mines with fewer than 20

employees. However, for the purposes

of the RFA and this certification, MSHA

has also evaluated the impact of the

proposal on mines with 500 employees

or fewer. No small governmental

jurisdictions or nonprofit organizations

are significantly or uniquely affected.

Under the Small Business Regulatory

Enforcement Fairness Act (SBREFA)

amendments to the RFA, MSHA must

include in the proposal a factual basis

for this certification. The Agency also

must publish the regulatory flexibility

certification statement in the Federal

Register, along with the factual basis,

followed by an opportunity for

comment by the public.
47332 Federal Register / Vol. 62, No. 173 / Monday, September 8, 1997 / Proposed Rules

MSHA specifically solicits comment

on the Agency’s determination in this

regulatory flexibility certification

statement, including cost data and data

sources. To facilitate the public

participation in the rulemaking process,

MSHA will mail a copy of the proposed

rule, including the preamble and

regulatory flexibility certification

statement, to mine operators and

miners’ representatives.

Factual basis for certification. MSHA

explains below the Agency’s

quantitative approach in reaching its

conclusion on the impact of the

statutory provisions, as implemented by

the rule. The Agency performed its

analysis separately for two groups of

mines: the coal mining sector as a

whole, and the metal and nonmetal

mining sector as a whole. Based on a

review of available sources of public

data on the mining industry, the Agency

believes that a quantitative analysis of

the impacts on various mining

subsectors may not be feasible. The

Agency requests comments, however,

on whether there are special

circumstances that warrant separate

quantification of the impact of this

proposal on any mining subsector, and

information on how it might readily

obtain the data necessary to conduct

such a quantitative analysis. The

Agency is fully cognizant of the

diversity of mining operations in each

sector, and has applied that knowledge

as it developed the proposal.

Under the SBREFA amendments to

the RFA, MSHA must use the SBA

definition for a small mine of 500

employees or fewer 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. The

alternative definition could be the

Agency’s traditional definition of ‘‘fewer

than 20 miners,’’ or some other

definition. As reflected in the

certification, MSHA analyzed the costs

of this proposal for small and large

mines using both the traditional Agency

definition, and SBA’s definition, as

required by RFA, of a small mine. The

Agency compared the costs of the

proposal for small mines in each sector

to the revenues for each sector for every

size category analyzed. In each case, the

results indicated that the costs as a

percent of revenue are less than 1

percent.

The following table summarizes the

results of this analysis.

SMALL MINES: COSTS COMPARED TO REVENUES

Number of

mines

Estimated cost

of proposal

Estimated

revenue

(millions)

Estimated

cost per

mine

Cost as percent of revenue

Coal Mines:

Small <20 ....................................................................................... 1601 $1,392,900 $836 $870 .17

Large >=20 .................................................................................... 1043 907,500 18,672 870 .005

Small <500 ..................................................................................... 2633 2,290,800 18,689 870 .01

Large >=500 .................................................................................. 11 9,600 819 870 .002

All Mines ............................................................................................... 2644 2,300,400 19,508 870 .01

M/NM Mines:

Small <20 ....................................................................................... 9195 631,700 11,929 70 .005

Large >=20 .................................................................................... 1540 105,800 26,071 70 .000

Small <500 ..................................................................................... 10706 735,500 32,134 70 .002

Large >=500 .................................................................................. 29 2,000 5,866 70 .000

All Mines ............................................................................................... 10735 737,500 38,000 70 .002

VII. Unfunded Mandates

The Unfunded Mandates Reform Act

was enacted in 1995. While much of the

Act is designed to assist the Congress in

determining whether its actions will

impose costly new mandates on State,

local, and tribal governments, the Act

also includes requirements to assist

Federal agencies to make this same

determination with respect to regulatory

actions.

MSHA has determined that, for

purposes of § 202 of the Unfunded

Mandates Reform Act of 1995, this

proposal does not include any Federal

mandate that may result in increased

expenditures by State, local, or tribal

governments in the aggregate of more

than $100 million, or increased

expenditures by the private sector of

more than $100 million. Moreover, the

Agency has determined that for

purposes of § 203 of that Act, this

proposed rule does not significantly or

uniquely affect small governments.

Analysis. Based on the analysis in the

Agency’s preliminary Regulatory Impact

Statement, the cost of this proposed rule

for the entire mining industry is less

than $100 million. Accordingly, there is

no need for further analysis under § 202

of the Unfunded Mandates Reform Act.

MSHA has concluded that small

governmental entities are not

significantly or uniquely impacted by

the proposed regulation. The proposed

rule will impact approximately 2,545

coal and 10,563 metal and nonmetal

mining operations.

When MSHA issues the proposed

rule, the Agency will affirmatively seek

input of any state, local, and tribal

government which may be affected by

the civil penalty rulemaking. This

would include state and local

governmental entities who operate sand

and gravel mines in the construction

and repair of highways and roads.

MSHA will mail a copy of the proposed

rule to approximately 350 such entities.

Following is a state-by-state listing of

sand and gravel mines owned or

operated by state or local governments

according to MSHA records. The

Agency welcomes any comments or

corrections.

STATE/COUNTY OWNED/OPERATED SAND AND GRAVEL OPERATIONS

[As of 12/08/95]

State State

owned

County

owned City owned

ARIZONA .................................................................................................................................................. 2 2 ....................
Federal Register / Vol. 62, No. 173 / Monday, September 8, 1997 / Proposed Rules 47333

STATE/COUNTY OWNED/OPERATED SAND AND GRAVEL OPERATIONS—Continued

[As of 12/08/95]

State State

owned

County

owned City owned

ARKANSAS .............................................................................................................................................. .................... 5 ....................

CALIFORNIA ............................................................................................................................................ .................... 4 ....................

COLORADO ............................................................................................................................................. 4 27 ....................

IDAHO ...................................................................................................................................................... .................... 13 ....................

ILLINOIS ................................................................................................................................................... .................... 2 ....................

INDIANA ................................................................................................................................................... .................... 5 ....................

IOWA ........................................................................................................................................................ .................... 2 ....................

KANSAS ................................................................................................................................................... .................... 2 ....................

MAINE ...................................................................................................................................................... 5 .................... ....................

MARYLAND .............................................................................................................................................. .................... .................... 6

MICHIGAN ................................................................................................................................................ .................... 8 ....................

MISSISSIPPI ............................................................................................................................................ .................... 5 ....................

MISSOURI ................................................................................................................................................ .................... 8 ....................

MONTANA ................................................................................................................................................ 8 34 ....................

NEBRASKA .............................................................................................................................................. .................... 2 ....................

NEVADA ................................................................................................................................................... .................... 1 ....................

NEW MEXICO .......................................................................................................................................... .................... 4 ....................

NEW YORK .............................................................................................................................................. .................... 15 95

OKLAHOMA ............................................................................................................................................. .................... 2 ....................

OREGON .................................................................................................................................................. .................... 11 ....................

PENNSYLVANIA ...................................................................................................................................... .................... .................... 1

SOUTH CAROLINA ................................................................................................................................. .................... 1 ....................

SOUTH DAKOTA ..................................................................................................................................... .................... 15 ....................

TENNESSEE ............................................................................................................................................ .................... 3 ....................

TEXAS ...................................................................................................................................................... .................... 6 ....................

UTAH ........................................................................................................................................................ 1 5 ....................

VERMONT ................................................................................................................................................ .................... .................... 11

WASHINGTON ......................................................................................................................................... .................... 9 ....................

WISCONSIN ............................................................................................................................................. .................... 20 1

WYOMING ................................................................................................................................................ .................... 1 ....................

TOTAL (346) ..................................................................................................................................... 20 212 114

List of Subjects in 30 CFR Part 100

Mine safety and health, Penalties.

Dated: September 2, 1997.

J. Davitt McAteer,

Assistant Secretary for Mine Safety and

Health.

It is proposed to amend part 100,

subchapter P, chapter I, title 30 of the

Code of Federal Regulations as follows:

PART 100—CRITERIA AND

PROCEDURES FOR PROPOSED

ASSESSMENT OF CIVIL PENALTIES

1. The authority citation for part 100

continues to read as follows:

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

2. Section 100.3 is amended by

revising the introductory text of

paragraph (a) and revising paragraph (g)

to read as follows:

§ 100.3 Determination of penalty amount;

regular assessment.

(a) General. 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, shall be assessed a civil

penalty of not more than $55,000. Each

occurrence of a violation of a mandatory

safety or health standard may constitute

a separate offense. The amount of the

civil penalty proposed shall be based

upon the formula set forth in this

section. The formula is based on the

general criteria described in sections

105(b) and 110(i) of the Act. These

criteria are:

* * * * *

(g) Penalty conversion table. The

following penalty conversion table shall

be used to convert the accumulation of

penalty points to the appropriate

proposed monetary assessment.

PENALTY CONVERSION TABLE

Points Penalty

20 or fewer .................................... 66

21 .................................................. 73

22 .................................................. 79

23 .................................................. 86

24 .................................................. 92

25 .................................................. 99

26 .................................................. 109

27 .................................................. 119

28 .................................................. 129

29 .................................................. 139

30 .................................................. 149

31 .................................................. 162

32 .................................................. 175

33 .................................................. 188

PENALTY CONVERSION TABLE—

Continued

Points Penalty

34 .................................................. 201

35 .................................................. 215

36 .................................................. 231

37 .................................................. 248

38 .................................................. 264

39 .................................................. 281

40 .................................................. 297

41 .................................................. 321

42 .................................................. 347

43 .................................................. 371

44 .................................................. 396

45 .................................................. 420

46 .................................................. 453

47 .................................................. 486

48 .................................................. 570

49 .................................................. 679

50 .................................................. 796

51 .................................................. 936

52 .................................................. 1,086

53 .................................................. 1,247

54 .................................................. 1,419

55 .................................................. 1,603

56 .................................................. 1,815

57 .................................................. 2,041

58 .................................................. 2,279

59 .................................................. 2,531

60 .................................................. 2,796

61 .................................................. 3,098

62 .................................................. 3,416
47334 Federal Register / Vol. 62, No. 173 / Monday, September 8, 1997 / Proposed Rules

PENALTY CONVERSION TABLE—

Continued

Points Penalty

63 .................................................. 3,748

64 .................................................. 4,096

65 .................................................. 4,400

66 .................................................. 4,620

67 .................................................. 4,840

68 .................................................. 5,060

69 .................................................. 5,280

70 .................................................. 5,500

71 .................................................. 5,775

72 .................................................. 6,050

73 .................................................. 6,325

74 .................................................. 6,600

75 .................................................. 6,875

76 .................................................. 7,150

77 .................................................. 7,700

78 .................................................. 8,250

79 .................................................. 8,800

80 .................................................. 9,350

81 .................................................. 10,450

82 .................................................. 11,550

83 .................................................. 12,650

84 .................................................. 13,750

85 .................................................. 14,850

86 .................................................. 16,500

87 .................................................. 18,700

88 .................................................. 20,900

89 .................................................. 23,100

90 .................................................. 25,300

91 .................................................. 27,500

92 .................................................. 30,250

93 .................................................. 33,000

PENALTY CONVERSION TABLE—

Continued

Points Penalty

94 .................................................. 35,750

95 .................................................. 38,500

96 .................................................. 41,250

97 .................................................. 44,000

98 .................................................. 46,750

99 .................................................. 49,500

100 ................................................ 55,000

* * * * *

3. Section 100.4 is amended by

revising paragraph (a) to read as follows:

§ 100.4 Determination of penalty; single

penalty assessment.

(a) An assessment of $55 may be

imposed as the civil penalty where the

violation is not reasonably likely to

result in a reasonably serious injury or

illness (non-S&S) and is abated within

the time set by the inspector. If the

violation is not abated within the time

set by the inspector, the violation will

not be eligible for the $55 single penalty

and will be processed through either the

regular assessment provision (§ 100.3) or

special assessment provision (§ 100.5). If

the violation meets the criteria for

excessive history under § 100.4(b), the

violation will not be eligible for the $55

single penalty and will be processed

through the regular assessment

provision (§ 100.3).

* * * * *

4. Section 100.5 is amended by

redesignating the introductory text as

paragraph (a); paragraphs (a) through (h)

as paragraphs (a) (1) through (8);

concluding text as paragraph (b); and by

adding new paragraphs (c), and (d) to

read as follows:

§ 100.5 Determination of penalty; special

assessment.

* * * * *

(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 $5,500 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.

[FR Doc. 97–23731 Filed 9–5–97; 8:45 am]

BILLING CODE 4510–43–P