[Federal Register Volume 62, Number 173 (Monday, September 8, 1997)]
[Proposed Rules]
[Pages 47330-47334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23731]
[[Page 47329]]
_______________________________________________________________________
Part VI
Department of Labor
_______________________________________________________________________
Mine Safety and Health Administration
_______________________________________________________________________
30 CFR Part 100
Criteria and Procedures for Proposed Assessment of Civil Penalties;
Proposed Rule
Federal Register / Vol. 62, No. 173 / Monday, September 8, 1997 /
Proposed Rules
[[Page 47330]]
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
[[Page 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 cost-of-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 cost-of-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 Sec. 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.
[[Page 47332]]
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
----------------------------------------------------------------------------------------------------------------
Estimated Estimated Cost as
Number of Estimated cost revenue cost per percent of
mines of proposal (millions) mine 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
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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 Sec. 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 Sec. 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 Sec. 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]
------------------------------------------------------------------------
County
State State owned owned City owned
------------------------------------------------------------------------
ARIZONA.......................... 2 2 ...........
[[Page 47333]]
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
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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:
Sec. 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
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
[[Page 47334]]
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
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:
Sec. 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 (Sec. 100.3) or special assessment provision (Sec. 100.5). If
the violation meets the criteria for excessive history under
Sec. 100.4(b), the violation will not be eligible for the $55 single
penalty and will be processed through the regular assessment provision
(Sec. 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:
Sec. 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
