30 CFR § 100.3
Determination of penalty amount; regular assessment.
(a) General. (1) Except as provided in § 100.5(e), the operator
of any mine in which a violation occurs of a mandatory health or safety
standard or who violates any other provision of the Mine Act, as
amended, shall be assessed a civil penalty of not more than $70,000.
Each occurrence of a violation of a mandatory safety or health standard may constitute a separate offense. The amount
of the proposed civil penalty shall be based on the criteria set forth
in sections 105(b) and 110(i) of the Mine Act. These criteria are:
(i) The appropriateness of the penalty to the size of the
business of the operator charged;
(ii) The
operator's history of previous violations;
(iii)
Whether the operator was negligent;
(iv) The gravity of the violation;
(v) The
demonstrated good faith of the operator charged in attempting to achieve rapid
compliance after notification of a violation; and
(vi) The effect of the penalty on the operator's ability to
continue in business.
(2) A
regular assessment is determined by first assigning the appropriate number of
penalty points to the violation by using the appropriate criteria and tables
set forth in this section. The total
number of penalty points will then be converted into a dollar amount under the
penalty conversion table in paragraph (g) of this section. The penalty amount will be adjusted for
demonstrated good faith in accordance with paragraph (f) of this section.
(b) The appropriateness of the penalty to the size
of the business of the operator charged.
The appropriateness of the penalty to the size of the mine operator's
business is calculated by using both the size of the mine cited and the size of
the mine's controlling entity. The size
of coal mines and their controlling entities is measured by coal
production. The size of metal and
nonmetal mines and their controlling entities is measured by hours worked. The size of independent contractors is
measured by the total hours worked at all mines. Penalty points for size are assigned based on
Tables I to V. As used in these tables, the terms "annual tonnage"
and "annual hours worked" mean coal produced and hours worked in the
previous calendar year. In cases where a
full year of data is not available, the coal produced or hours worked is
prorated to an annual basis. This
criterion accounts for a maximum of 25 penalty points.
Table I—Size of Coal Mine
Annual tonnage of
mine
|
Penalty Points
|
0 to 7,500
|
1
|
Over 7,500 to 10,000
|
2
|
Over 10,000 to 15,000
|
3
|
Over 15,000 to 20,000
|
4
|
Over 20,000 to 30,000
|
5
|
Over 30,000 to 50,000
|
6
|
Over 50,000 to 70,000
|
7
|
Over 70,000 to 100,000
|
8
|
Over 100,000 to 200,000
|
9
|
Over 200,000 to 300,000
|
10
|
Over 300,000 to 500,000
|
11
|
Over 500,000 to 700,000
|
12
|
Over 700,000 to 1,000,000
|
13
|
Over 1,000,000 to 2,000,000
|
14
|
Over 2,000,000
|
15
|
Table II—Size of Controlling Entity—Coal Mine
Annual tonnage
|
Penalty Points
|
0 to 50,000
|
1
|
Over 50,000 to 100,000
|
2
|
Over 100,000 to 200,000
|
3
|
Over 200,000 to 300,000
|
4
|
Over 300,000 to 500,000
|
5
|
Over 500,000 to 700,000
|
6
|
Over 700,000 to 1,000,000
|
7
|
Over 1,000,000 to 3,000,000
|
8
|
Over 3,000,000 to 10,000,000
|
9
|
Over 10,000,000
|
10
|
Table III—Size of Metal/Nonmetal Mine
Annual hours worked
at mine
|
Penalty Points
|
0 to 5,000
|
0
|
Over 5,000 to 10,000
|
1
|
Over 10,000 to 20,000
|
2
|
Over 20,000 to 30,000
|
3
|
Over 30,000 to 50,000
|
4
|
Over 50,000 to 100,000
|
5
|
Over 100,000 to 200,000
|
6
|
Over 200,000 to 300,000
|
7
|
Over 300,000 to 500,000
|
8
|
Over 500,000 to 700,000
|
9
|
Over 700,000 to 1,000,000
|
10
|
Over 1,000,000 to 1,500,000
|
11
|
Over 1,500,000 to 2,000,000
|
12
|
Over 2,000,000 to 3,000,000
|
13
|
Over 3,000,000 to 5,000,000
|
14
|
Over 5,000,000
|
15
|
Table IV—Size of Controlling Entity—Metal/Nonmetal Mine
Annual hours worked
|
Penalty Points
|
0 to 50,000
|
0
|
Over 50,000 to 100,000
|
1
|
Over 100,000 to 200,000
|
2
|
Over 200,000 to 300,000
|
3
|
Over 300,000 to 500,000
|
4
|
Over 500,000 to 1,000,000
|
5
|
Over 1,000,000 to 2,000,000
|
6
|
Over 2,000,000 to 3,000,000
|
7
|
Over 3,000,000 to 5,000,000
|
8
|
Over 5,000,000 to 10,000,000
|
9
|
Over 10,000,000
|
10
|
Table V—Size of Independent Contractor
Annual hours worked
at all mines
|
Penalty Points
|
0 to 5,000
|
0
|
Over 5,000 to 7,000
|
2
|
Over 7,000 to 10,000
|
4
|
Over 10,000 to 20,000
|
6
|
Over 20,000 to 30,000
|
8
|
Over 30,000 to 50,000
|
10
|
Over 50,000 to 70,000
|
12
|
Over 70,000 to 100,000
|
14
|
Over 100,000 to 200,000
|
16
|
Over 200,000 to 300,000
|
18
|
Over 300,000 to 500,000
|
20
|
Over 500,000 to 700,000
|
22
|
Over 700,000 to 1,000,000
|
24
|
Over 1,000,000
|
25
|
(c) History of previous violations. An operator's history of previous violations
is based on both the total number of violations and the number of repeat
violations of the same citable provision of a standard in a preceding 15-month
period. Only assessed violations that
have been paid or finally adjudicated, or have become final orders of the
Commission will be included in determining an operator's history. The repeat aspect of the history criterion in
paragraph (c)(2) applies only after an operator
has received 10 violations or an independent contractor operator has received 6
violations.
(1) Total number of violations. For mine operators, penalty points are assigned
on the basis of the number of violations per inspection day (VPID)(Table VI).
Penalty points are not assigned for mines with fewer than 10 violations
in the specified history period. For independent contractors, penalty points are assigned on the basis of the total
number of violations at all mines (Table VII).
This aspect of the history criterion accounts for a maximum of 25
penalty points.
Table VI — History of Previous Violations-Mine Operators
Mine Operator's Overall History of Violations Per Inspection Day
|
Penalty Points
|
0 to 0.3
|
0
|
Over 0.3 to 0.5
|
2
|
Over 0.5 to 0.7
|
5
|
Over 0.7 to 0.9
|
8
|
Over 0.9 to 1.1
|
10
|
Over 1.1 to 1.3
|
12
|
Over 1.3 to 1.5
|
14
|
Over 1.5 to 1.7
|
16
|
Over 1.7 to 1.9
|
19
|
Over 1.9 to 2.1
|
22
|
Over 2.1
|
25
|
Table VII—History of Previous Violations-Independent Contractors
Independent Contractor's Overall History of Number of Violations
|
Penalty Points
|
0 to 5
|
0
|
6
|
1
|
7
|
2
|
8
|
3
|
9
|
4
|
10
|
5
|
11
|
6
|
12
|
7
|
13
|
8
|
14
|
9
|
15
|
10
|
16
|
11
|
17
|
12
|
18
|
13
|
19
|
14
|
20
|
15
|
21
|
16
|
22
|
17
|
23
|
18
|
24
|
19
|
25
|
20
|
26
|
21
|
27
|
22
|
28
|
23
|
29
|
24
|
Over 29
|
25
|
(2) Repeat violations of the same standard. Repeat
violation history is based on the number of violations of the same citable
provision of a standard in a preceding 15-month period. For coal and metal and nonmetal mine operators
with a minimum of six repeat violations, penalty points are assigned on the
basis of the number of repeat violations per inspection day (RPID )(Table VIII). For
independent contractors, penalty points are assigned on the basis of the number
of violations at all mines (Table IX).
This aspect of the history criterion accounts for a maximum of 20
penalty points (Table VIII).
Table VIII-History of Previous Violations-Repeat Violations for Coal and Metal and Nonmetal
Operators with a Minimum of 6 Repeat Violations
Number
of Repeat Violations Per Inspection Day
|
Final
Rule Penalty Points
|
0 to 0.01
|
0
|
Over 0.01 to 0.015
|
1
|
Over 0.015 to 0.02
|
2
|
Over 0.02 to 0.025
|
3
|
Over 0.025 to 0.03
|
4
|
Over 0.03 to 0.04
|
5
|
Over 0.04 to 0.05
|
6
|
Over 0.05 to 0.06
|
7
|
Over 0.06 to 0.08
|
8
|
Over 0.08 to 0.10
|
9
|
Over 0.10 to 0.12
|
10
|
Over 0.12 to 0.14
|
11
|
Over 0.14 to 0.16
|
12
|
Over 0.16 to 0.18
|
13
|
Over 0.18 to 0.20
|
14
|
Over 0.20 to 0.25
|
15
|
Over 0.25 to 0.3
|
16
|
Over 0.3 to 0.4
|
17
|
Over 0.4 to 0.5
|
18
|
Over 0.5 to 1.0
|
19
|
Over 1.0
|
20
|
Table IX-History of Previous Violations-Repeat Violations for Independent Contractors
Number of Repeat Violations of the Same Standard
|
Final Rule Penalty Points
|
5 or fewer
|
0
|
6
|
2
|
7
|
4
|
8
|
6
|
9
|
8
|
10
|
10
|
11
|
12
|
12
|
14
|
13
|
16
|
14
|
18
|
More than 14
|
20
|
(d) Negligence. Negligence is conduct,
either by commission or omission, which falls below a standard of care
established under the Mine Act to protect miners against the risks of
harm. Under the Mine Act, an operator is
held to a high standard of care. A mine
operator is required to be on the alert for conditions and practices in the
mine that affect the safety or health of miners and to take steps necessary to
correct or prevent hazardous conditions or practices. The failure to exercise a high standard of
care constitutes negligence. The
negligence criterion assigns penalty points based on the degree to which the
operator failed to exercise a high standard of care. When applying this criterion, MSHA considers
mitigating circumstances which may include, but are not limited to, actions
taken by the operator to prevent or correct hazardous conditions or
practices. This criterion accounts for a
maximum of 50 penalty points, based on conduct evaluated according to Table X.
Table X—Negligence
Categories
|
Penalty Points
|
No negligence
|
0
|
(The
operator exercised diligence and could not have known of the violative condition or practice.)
|
Low negligence
|
10
|
(The operator
knew or should have known of the violative
condition or practice, but there are considerable mitigating
circumstances.)
|
Moderate negligence
|
20
|
(The
operator knew or should have known of the violative
condition or practice, but there are mitigating circumstances.)
|
High negligence
|
35
|
(The operator
knew or should have known of the violative
condition or practice, and there are no mitigating circumstances.)
|
Reckless disregard
|
50
|
(The operator
displayed conduct which exhibits the absence of the slightest degree of
care.)
|
(e) Gravity. Gravity is an evaluation of the
seriousness of the violation. This
criterion accounts for a maximum of 88 penalty points, as derived from the
Tables XI through XIII. Gravity is
determined by the likelihood of the occurrence of the event against which a
standard is directed; the severity of the illness or injury if the event has occurred
or was to occur; and the number of persons potentially affected if the event has
occurred or were to occur.
Table XI—Gravity: Likelihood
Likelihood of
occurrence
|
Penalty Points
|
No likelihood
|
0
|
Unlikely
|
10
|
Reasonably likely
|
30
|
Highly likely
|
40
|
Occurred
|
50
|
Table XII—Gravity: Severity
Severity of injury
or illness if the event has
occurred or were to occur
|
Penalty Points
|
No lost work days
|
0
|
(All
occupational injuries and illnesses as defined in 30 CFR Part 50 except those
listed below.)
|
Lost work days or
restricted duty
|
5
|
(Any injury
or illness which would cause the injured or ill person to lose one full day
of work or more after the day of the injury or illness, or which would cause
one full day or more of restricted duty.)
|
Permanently
disabling
|
10
|
(Any injury
or illness which would be likely to result in the total or partial loss of
the use of any member or function of the body.)
|
Fatal
|
20
|
(Any work-related injury or illness
resulting in death, or which has a reasonable potential to cause death.)
|
Table XIII—Gravity: Persons Potentially Affected
Number of persons
potentially affected
if the event has occurred or were to occur
|
Penalty Points
|
0
|
0
|
1
|
1
|
2
|
2
|
3
|
4
|
4
|
6
|
5
|
8
|
6
|
10
|
7
|
12
|
8
|
14
|
9
|
16
|
10 or more
|
18
|
(f) Demonstrated good faith of the operator in abating the violation. This criterion provides a 10% reduction in
the penalty amount of a regular assessment where the operator abates the
violation within the time set by the inspector.
(g) Penalty conversion table. The penalty
conversion table is used to convert the total penalty points to a dollar
amount.
Table XIV—Penalty Conversion Table
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
|
(h)The effect of the penalty on the operator's ability to continue in
business. MSHA presumes that the
operator's ability to continue in business will not be affected by the
assessment of a civil penalty. The
operator may, however, submit information to the District Manager concerning
the financial status of the business. If
the information provided by the operator indicates that the penalty will
adversely affect the operator's ability to continue in business, the penalty
may be reduced.
|