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§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 $88,354. 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 7,500 to 10,000	2
	Over 50,000 to 100,000	3
	Over 100,000 to 200,000	4
	Over 200,000 to 300,000	5
	Over 300,000 to 500,000	6
	Over 500,000 to 700,000	7
	Over 700,000 to 1,000,000	8
	Over 1,000,000 to 3,000,000	9
	Over 3,000,000 to 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	12
	Over 3,000,000 to 5,000,000	14
	Over 5,000,000	15

Table IV — Size of Controlling Entity — Metal/Nonmetal Mine

	Annual Hous Worked	Penalty Points
	0 to 50,00	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) of this section 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 Operations

	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 0.1	0
	Over 0.1 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 0.30	16
	Over 0.30 to 0.40	17
	Over 0.40 to 0.50	18
	Over 0.50 to 1.00	19
	Over 1.00	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	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 (The operator exercised diligence and could not have known of the violative condition or practice.)	0
	Low Negligence (The operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances)	10
	Moderate Negligence (The operator knew or should have known of the violative condition or practice, and there are no mitigating circumstances)	20
	High Negligence (The operator knew or should have known of the violative practice, and there are no mitigating circumstances)	35
	Reckless Disregard (The operator displayed conduct which exhibits the absence of the slightest degree of care.)	50

(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 (All occupational injuries and illnesses as defined in 30 CFR Part 50 except those listed below)	0
	Lost work days or restricted duty (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 on full day or more of restricted duty.)	5
	Permanently disabling (Any injury or illness which would be liekly to result in the total or partial loss of the use of any member or function of the body)	10
	Fatal (Any work-related injury or illness resulting in death, or which has a reasonable potential to cause death.)	20

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 14 to Paragraph (g) — Penalty Conversion Table

	Points	Penalty ($)
	60 or fewer	$164
	61	179
	62	192
	63	210
	64	227
	65	246
	66	266
	67	289
	68	312
	69	339
	70	365
	71	397
	72	432
	73	468
	74	504
	75	547
	76	595
	77	641
	78	696
	79	755
	80	818
	81	886
	82	957
	83	1,039
	84	1,124
	85	1,220
	86	1,321
	87	1,430
	88	1,550
	89	1,679
	90	1,819
	91	1,970
	92	2,132
	93	2,311
	94	2,504
	95	2,712
	96	2,938
	97	3,180
	98	3,448
	99	3,735
	100	4,047
	101	4,383
	102	4,748
	103	5,143
	104	5,571
	105	6,037
	106	6,538
	107	7,083
	108	7,673
	109	8,313
	110	9,005
	111	9,752
	112	10,567
	113	11,447
	114	12,401
	115	13,433
	116	14,551
	117	15,765
	118	17,077
	119	18,500
	120	20,039
	121	21,711
	122	23,515
	123	25,477
	124	27,599
	125	29,893
	126	32,386
	127	35,084
	128	38,005
	129	41,171
	130	44,601
	131	48,316
	132	52,338
	133	56,698
	134	61,221
	135	65,741
	136	70,266
	137	74,785
	138	79,309
	139	83,830
	140 or more	88,354

(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.

[72 FR 13635, Mar. 22, 2007, as amended at 73 FR 7209, Feb. 7, 2008; 81 FR 43455, July 1, 2016; 82 FR 5383, Jan. 18, 2017; 83 FR 14, Jan. 2, 2018; 84 FR 219, Jan. 23, 2019; 85 FR 2299, Jan. 15, 2020]

Reason: