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.