[Federal Register Volume 73, Number 26 (Thursday, February 7, 2008)]
[Rules and Regulations]
[Pages 7206-7210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-2226]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 100

RIN 1219-AB57


Criteria and Procedures for Proposed Assessment of Civil 
Penalties

AGENCY: Mine Safety and Health Administration (MSHA), Labor.

ACTION: Final rule.

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SUMMARY: The Mine Safety and Health Administration (MSHA) is revising 
its civil penalty assessment amounts to adjust for inflation. The Debt 
Collection Improvement Act of 1996 (DCIA) requires MSHA to adjust all 
civil penalties for inflation at least once every four years according 
to the formula specified in the Federal Civil Penalties Inflation 
Adjustment Act of 1990 (Inflation Adjustment Act). The revised 
penalties apply to citations and orders issued on or after the 
effective date of this rule.

DATES: This final rule is effective on March 10, 2008.

FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office 
of Standards, Regulations, and Variances, MSHA, 1100 Wilson Blvd., Room 
2350, Arlington, Virginia 22209-3939, <a href="/cdn-cgi/l/email-protection#4e3d2722382b37603e2f3a3c272d272f0e2a212260292138"><span class="__cf_email__" data-cfemail="76051f1a00130f58061702041f151f173612191a58111900">[email protected]</span></a>, 202-693-
9440 (telephone), or 202-693-9441 (facsimile).

SUPPLEMENTARY INFORMATION:

I. Final Rule

    The Administrative Procedure Act (APA) requires that rulemakings be 
published in the Federal Register and requires generally that agencies 
provide an opportunity for public comment. However, notice and an 
opportunity for public comment are not required when

[[Page 7207]]

the agency ``for good cause finds'' that notice and comment ``are 
impracticable, unnecessary, or contrary to the public interest.'' 5 
U.S.C. 553(b)(B).
    The Inflation Adjustment Act, as amended by the DCIA, requires MSHA 
to review and, where appropriate, adjust its civil penalties for 
inflation at least once every four years. The DCIA prescribes the 
formula for any such adjustments. The decision whether to make 
adjustments and the amount of any adjustments are not within MSHA's 
discretion. MSHA is required to perform mathematical computations based 
on published cost-of-living data and adjust its maximum penalties 
accordingly. For this reason, MSHA has determined for good cause that 
public notice and comment are unnecessary, impractical, or contrary to 
the public interest and that this rule should be published in final 
form. In accordance with the APA, this rule is effective 30 days after 
the date of publication in the Federal Register.

II. Rulemaking Background

    On March 22, 2007 (72 FR 13592), MSHA published the final rule, 
Criteria and Procedures for Proposed Assessment of Civil Penalties 
(Civil Penalties), that implemented the civil penalty provisions in 
Sections 5 and 8 of the Mine Improvement and New Emergency Response Act 
of 2006 (MINER Act) and revised existing civil penalty regulations in 
part 100 of Title 30 in the Code of Federal Regulations (CFR). Although 
MSHA significantly increased civil penalties in the final rule, the 
Agency retained the $60,000 maximum for non-flagrant civil penalties. 
The Agency also retained the $6,500 maximum daily penalty and the $275 
maximum penalty for smoking or carrying smoking materials.

III. Discussion of the Final Rule

A. General Discussion

    In passing the Inflation Adjustment Act, Congress noted a concern 
for civil penalties to keep pace with inflation. Section 5 provides an 
inflation adjustment formula that defines a ``cost-of-living'' 
adjustment as--

* * * the percentage (if any) for each civil monetary penalty by 
which--
    (1) the Consumer Price Index for the month of June of the 
calendar year preceding the adjustment, exceeds
    (2) 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 pursuant to law.

    Section 3(3) defines the term ``Consumer Price Index'' (CPI) to 
mean ``the Consumer Price Index for all-urban consumers published by 
the Department of Labor.''
    Section 5(a) included criteria for rounding the cost-of-living 
adjustment amount as follows:

    Any increase * * * shall be rounded to the nearest--
    (1) multiple of $10 in the case of penalties less than or equal 
to $100;
    (2) multiple of $100 in the case of penalties greater than $100 
but less than or equal to $1,000;
    (3) multiple of $1,000 in the case of penalties greater than 
$1,000 but less than or equal to $10,000;
    (4) multiple of $5,000 in the case of penalties greater than 
$10,000 but less than or equal to $100,000;
    (5) multiple of $10,000 in the case of penalties greater than 
$100,000 but less than or equal to $200,000; and
    (6) multiple of $25,000 in the case of penalties greater than 
$200,000.

    This final rule makes a cost-of-living adjustment to MSHA's 
proposed civil penalty assessment amounts in accordance with the 
Inflation Adjustment Act. MSHA is adjusting the following three civil 
penalties in 30 CFR part 100: The maximum civil penalty, the maximum 
daily penalty, and the maximum miner smoking penalty. These penalties 
were last adjusted, as appropriate, in 2003 based on the CPI of the 
previous year. MSHA adjusted the maximum civil penalty and the maximum 
daily penalty. The maximum smoking penalty was last adjusted in 1998 
from $250 to $275. It was not adjusted in 2003 because the increase 
under the inflation adjustment formula rounded to zero.
    MSHA is adjusting the maximum civil penalty and the maximum daily 
penalty based on the percentage change in the CPI between June of 2003 
and June of 2007. MSHA is adjusting the maximum smoking penalty based 
on the percentage change in the CPI between June 1998 and June 2007.
    During the four-year period from June 2003 to June 2007, inflation 
was approximately 13.4%. During the nine-year period from June 1998 to 
June 2007, inflation was approximately 27.8%. In the final rule, MSHA 
has adjusted the maximum civil penalty and the maximum daily penalty by 
13.4% and the maximum smoking penalty by 27.8%, and rounded each 
increase in accordance with the Congressional rounding formula.

B. Section-by-Section Analysis

    The following is an analysis of the final rule's effect on existing 
civil penalty amounts.

Section 100.3 Determination of Penalty Amount; Regular Assessment

    This section addresses the determination of a penalty amount for 
violations of the Mine Act, as amended, and MSHA's safety and health 
regulations, under the regular civil penalty assessment provision.
    Final Sec.  100.3(a)(1) provides the criteria for determining 
penalty assessments and specifies a maximum dollar amount for a 
proposed civil penalty assessment. To adjust the existing maximum civil 
penalty assessment of $60,000 for inflation, MSHA applied the 13.4% 
inflation increase, which resulted in $8,052. MSHA rounded the increase 
to $10,000 in accordance with the Inflation Adjustment Act. This final 
rule increases the maximum civil penalty to $70,000.
    Section 100.3(g) contains a penalty conversion table that 
correlates the total points assigned for each criterion listed in this 
section with a proposed civil penalty dollar amount. The existing rule 
provides a penalty range of $112 to $60,000, and violations assessed 
through the regular formula receive the maximum penalty only if they 
receive 140 points or more. The final rule provides a penalty range of 
$112 to $70,000, and violations receive the maximum penalty if they 
receive 144 points or more.
    Violations receiving 140 or fewer points have no penalty increase 
because MSHA last adjusted these penalties in March 2007, and the 
average penalty increase at that time was greater than the amount of 
inflation.
    Under the existing penalty conversion table, assessments for 
violations with 133 to 140 points increase at a constant rate of $3,071 
per point. Final Sec.  100.3(g) provides that assessments for 
violations with 141 or more points increase at the same constant rate 
of $3,071 per point until the new maximum penalty is reached. The final 
rule assigns a regularly assessed violation with more than 140 points 
new penalty amounts of: 141 points, $63,071; 142 points, $66,142; 143 
points, $69,213; and 144 or more points, $70,000.

Section 100.5 Determination of Penalty Amount; Special Assessment

    Section 100.5 provides for a special assessment for violations that 
MSHA determines should not be processed under the regular assessment 
provision. Once MSHA determines that a special assessment is 
appropriate, the Agency will base the proposed penalty on the criteria 
listed in Sec.  100.3(a).
    Section 100.5(c) addresses penalties which may be assessed daily to 
an

[[Page 7208]]

operator who fails to correct a violation for which a citation has been 
issued under Section 104(a) of the Mine Act within the time allowed. 
The existing maximum daily penalty assessment is $6,500. MSHA applied 
the 13.4% inflation increase, which resulted in $872. MSHA rounded the 
increase to $1,000 in accordance with the Inflation Adjustment Act. 
This final rule increases the maximum daily penalty to $7,500.
    Section 100.5(d) addresses penalties for miners who violate 
mandatory safety standards relating to smoking and smoking materials 
underground. The existing maximum smoking penalty is $275. MSHA applied 
the 27.8% inflation increase, which resulted in $77. MSHA rounded the 
increase to $100 in accordance with the Inflation Adjustment Act. This 
final rule raises the maximum smoking penalty to $375.

IV. Executive Order 12866

    Executive Order 12866 requires that regulatory agencies assess both 
the costs and benefits of significant regulatory actions. Under the 
Executive Order, a ``significant regulatory action'' is one meeting any 
of a number of specified conditions, including the following: Having an 
annual effect on the economy of $100 million or more, creating a 
serious inconsistency or interfering with an action of another agency, 
materially altering the budgetary impact of entitlements or the rights 
of entitlement recipients, or raising novel legal or policy issues. 
This rule is not classified as a ``significant'' regulatory action. 
MSHA, however, is providing the following summary of the costs and 
benefits of this regulatory action.

A. Population at Risk

    This final rule will apply to the entire mining industry. Based on 
2006 data, this rule covers 2,113 coal mines employing 81,985 miners 
and 3,708 office workers; and 12,772 metal and nonmetal mines employing 
157,850 miners and 26,727 office workers. In addition, this rule covers 
2,724 independent contractors in coal mines employing 37,282 workers, 
and 4,686 independent contractors in metal and nonmetal mines employing 
55,945 workers.

B. Benefits

    MSHA has qualitatively determined that this final rule will yield 
health and safety benefits by keeping civil penalties at a constant 
level, adjusted for inflation, in accordance with the Inflation 
Adjustment Act.

C. Compliance Costs

1. Summary
    For purposes of analyzing the economic effects of this final rule, 
MSHA focuses on the likely change in costs to mine operators and 
independent contractors that receive civil penalties.
    The estimated cost of this final rule is the change in dollar 
amounts paid for civil penalties. There is no real cost of the rule 
because the increase in the amount of civil penalties adjusts for 
inflation. However, there is a ``nominal'' cost attributable to the 
rule. A nominal cost reflects the increase in absolute dollars, 
unadjusted for any change in the price level. MSHA addresses the 
nominal cost of the rule below.
2. Analysis of Impact of Increased Civil Penalty Assessments
    This final rule raises the maximum civil penalty, the maximum daily 
penalty, and the maximum smoking penalty. In its cost analysis, based 
upon experience, MSHA estimates that the final rule will not have a 
significant cost impact due to the adjustment of the maximum civil 
penalty. MSHA has not estimated costs for increases in the maximum 
daily penalty and maximum smoking penalty. The Agency concludes that 
they will result in a de minimis cost impact.
    Three types of violations are affected by an increase in the 
maximum civil penalty:
    (1) Violations processed as special assessments that receive the 
maximum penalty. Based on historical data on special assessments for 
the maximum penalty, MSHA estimates an average of 13 violations per 
year. MSHA assumes that the increased cost would be $10,000 for each 
special assessment receiving the maximum penalty.
    (2) Violations processed as regular assessments with 141 or more 
points that do not receive a 10% discount for timely abatement. MSHA 
estimates that five violations per year will be of this type. 
Violations that receive 141-143 points will receive an average increase 
of $6,142 under this final rule; violations that receive 144 or more 
points will receive an increase of $10,000. MSHA estimates that two 
violations will receive 141-143 points and three will receive 144 or 
more points, for an average increase of $8,457.
    (3) Violations processed as regular assessments with 141 or more 
points that receive a 10% discount for timely abatement. MSHA estimates 
that approximately 11 violations per year will be of this type. 
Violations that receive 141-143 points will receive an average increase 
of $5,528; violations that receive 144 or more penalty points will 
receive an increase of $9,000. MSHA estimates that four violations will 
receive 141-143 points and seven will receive 144 or more points, for 
an average increase of $7,737.
    Table IV-1 summarizes MSHA's analysis.

                              Table IV-1. Annual Penalty Increase by Violation Type
----------------------------------------------------------------------------------------------------------------
                                                Violations per   Average increase  per      Annual increase in
               Type of assessment                    year              violation            nominal penalties
----------------------------------------------------------------------------------------------------------------
Special.......................................              13                   $10000                 $130,000
Regular (No Discount).........................               5                    8,457                   42,285
Regular (10% Discount)........................              11                    7,737                   85,107
                                               -----------------------------------------------------------------
    Total.....................................              29                    8,876                  257,392
----------------------------------------------------------------------------------------------------------------

V. Feasibility

    MSHA has concluded that the requirements of this final rule are 
technologically and economically feasible.

VI. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act (SBREFA)

    The Regulatory Flexibility Act (RFA) of 1980, as amended by the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 
generally requires an agency to prepare a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements unless the agency certifies that the rule will not have a 
significant impact on a substantial number of small entities. As notice 
and public comment are not

[[Page 7209]]

required for this rule, a regulatory flexibility analysis is not 
required. However, MSHA did analyze the impact of this final rule on 
small entities.
    The annual cost of the rule for coal mines is $229,286, of which 
$201,180 would be for coal mines with 1-500 employees. The annual cost 
of the rule for metal and nonmetal mines is $28,106, of which $23,668 
would be for metal and nonmetal mines with 1-500 employees. MSHA has 
concluded that the final rule will not have a significant impact on a 
substantial number of small entities.

VII. Paperwork Reduction Act of 1995

    This final rule does not require any paperwork or information 
collection.

VIII. Other Regulatory Considerations

A. The Unfunded Mandates Reform Act of 1995

    This 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. Executive Order 13132: Federalism

    This 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.

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

    This 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, Sec.  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.

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

    This 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.

E. Executive Order 12988: Civil Justice Reform

    This final rule was drafted and reviewed in accordance with 
Executive Order 12988, Civil Justice Reform. This 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 this final rule meets the applicable standards 
provided in Sec.  3 of Executive Order 12988.

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

    This 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.

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

    This 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

    This 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 this final rule will result in added yearly civil 
penalty assessments of approximately $229,000 to the coal mining 
industry, relative to annual revenues of $28.9 billion in 2006, 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 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.

J. Congressional Review Act

    The Congressional Review Act, codified at 5 U.S.C. 801 et seq., 
provides generally that ``major rules'' cannot take effect until 60 
days after publication of the rule in the Federal Register and delivery 
of the rule to each House of Congress and to the U.S. Comptroller 
General. MSHA has concluded, in agreement with the Office of 
Information and Regulatory Affairs at the Office of Management and 
Budget, that this rule is not a ``major rule'' for this purpose. For 
this reason, the rule will take effect on the date indicated.

List of Subjects in 30 CFR Part 100

    Mine safety and health, Penalties.

    Dated: January 31, 2008.
Richard E. Stickler,
Acting Assistant Secretary for Mine Safety and Health.

0
Under the authority of the Federal 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

0
1. The authority citation for part 100 continues to read as follows:

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


0
2. Section 100.3 is amended by revising paragraph (a)(1) introductory 
text and Table XIV in paragraph (g), to read as follows:


Sec.  100.3  Determination of penalty amount; regular assessment.

    (a) General. (1) Except as provided in Sec.  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 $70,000. 
Each occurrence of a violation of a mandatory

[[Page 7210]]

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:
* * * * *
    (g) * * *

                  Table XIV.--Penalty Conversion Table
------------------------------------------------------------------------
                         Points                             Penalty ($)
------------------------------------------------------------------------
60 or fewer.............................................             112
61......................................................             121
62......................................................             131
63......................................................             142
64......................................................             154
65......................................................             167
66......................................................             181
67......................................................             196
68......................................................             212
69......................................................             230
70......................................................             249
71......................................................             270
72......................................................             293
73......................................................             317
74......................................................             343
75......................................................             372
76......................................................             403
77......................................................             436
78......................................................             473
79......................................................             512
80......................................................             555
81......................................................             601
82......................................................             651
83......................................................             705
84......................................................             764
85......................................................             828
86......................................................             897
87......................................................             971
88......................................................           1,052
89......................................................           1,140
90......................................................           1,235
91......................................................           1,337
92......................................................           1,449
93......................................................           1,569
94......................................................           1,700
95......................................................           1,842
96......................................................           1,995
97......................................................           2,161
98......................................................           2,341
99......................................................           2,536
100.....................................................           2,748
101.....................................................           2,976
102.....................................................           3,224
103.....................................................           3,493
104.....................................................           3,784
105.....................................................           4,099
106.....................................................           4,440
107.....................................................           4,810
108.....................................................           5,211
109.....................................................           5,645
110.....................................................           6,115
111.....................................................           6,624
112.....................................................           7,176
113.....................................................           7,774
114.....................................................           8,421
115.....................................................           9,122
116.....................................................           9,882
117.....................................................          10,705
118.....................................................          11,597
119.....................................................          12,563
120.....................................................          13,609
121.....................................................          14,743
122.....................................................          15,971
123.....................................................          17,301
124.....................................................          18,742
125.....................................................          20,302
126.....................................................          21,993
127.....................................................          23,825
128.....................................................          25,810
129.....................................................          27,959
130.....................................................          30,288
131.....................................................          32,810
132.....................................................          35,543
133.....................................................          38,503
134.....................................................          41,574
135.....................................................          44,645
136.....................................................          47,716
137.....................................................          50,787
138.....................................................          53,858
139.....................................................          56,929
140.....................................................          60,000
141.....................................................          63,071
142.....................................................          66,142
143.....................................................          69,213
144 or more.............................................          70,000
------------------------------------------------------------------------

* * * * *

0
3. Section 100.5 is amended by revising paragraphs (c) and (d) to read 
as follows:


Sec.  100.5  Determination of penalty amount; 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 $7,500 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 of not more than $375 for 
each occurrence of such violation.
* * * * *

[FR Doc. E8-2226 Filed 2-6-08; 8:45 am]
BILLING CODE 4510-43-P


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