PART 100—CRITERIA AND PROCEDURES FOR PROPOSED ASSESSMENT OF CIVIL PENALTIES Authority: 5 U.S.C. 301; 30 U.S.C. 815, 820, 957; 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990); Pub. L. 114-74 at sec. 701. Source: 72 FR 13635, Mar. 22, 2007, unless otherwise noted. § 100.1 Scope and purpose. This part provides the criteria and procedures for proposing civil penalties under sections 105 and 110 of the Federal Mine Safety and Health Act of 1977 (Mine Act). The purpose of this part is to provide a fair and equitable procedure for the application of the statutory criteria in determining proposed penalties for violations, to maximize the incentives for mine operators to prevent and correct hazardous conditions, and to assure the prompt and efficient processing and collection of penalties. § 100.2 Applicability. The criteria and procedures in this part are applicable to all proposed assessments of civil penalties for violations of the Mine Act and the standards and regulations promulgated pursuant to the Mine Act, as amended. MSHA shall review each citation and order and shall make proposed assessments of civil penalties. § 100.3 Determination of penalty amount; regular assessment. (a) General. (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. (c) History of previous 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. (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). (d) Negligence. (e) Gravity. (f) Demonstrated good faith of the operator in abating the violation. (g) Penalty conversion table. Table 14 to Paragraph ( g Points Penalty 60 or fewer $168 61 184 62 197 63 215 64 233 65 252 66 273 67 297 68 320 69 348 70 374 71 407 72 443 73 480 74 517 75 561 76 610 77 658 78 714 79 775 80 839 81 909 82 982 83 1,066 84 1,153 85 1,252 86 1,355 87 1,467 88 1,590 89 1,723 90 1,866 91 2,021 92 2,187 93 2,371 94 2,569 95 2,782 96 3,014 97 3,263 98 3,538 99 3,832 100 4,152 101 4,497 102 4,871 103 5,277 104 5,716 105 6,194 106 6,708 107 7,267 108 7,872 109 8,529 110 9,239 111 10,005 112 10,842 113 11,744 114 12,723 115 13,782 116 14,929 117 16,175 118 17,521 119 18,981 120 20,560 121 22,275 122 24,126 123 26,139 124 28,316 125 30,670 126 33,227 127 35,995 128 38,992 129 42,241 130 45,760 131 49,571 132 53,698 133 58,171 134 62,812 135 67,449 136 72,092 137 76,728 138 81,369 139 86,008 140 or more 90,649 (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; 86 FR 2970, Jan. 14, 2021; 87 FR 2336, Jan. 14, 2022; 88 FR 2218, Jan. 13, 2023; 89 FR 1817, Jan. 11, 2024; 90 FR 1862, Jan. 10, 2025] § 100.4 Unwarrantable failure and immediate notification. (a) The minimum penalty for any citation or order issued under section 104(d)(1) of the Mine Act shall be $3,022. (b) The minimum penalty for any order issued under section 104(d)(2) of the Mine Act shall be $6,041. (c) The penalty for failure to provide timely notification to the Secretary under section 103(j) of the Mine Act will be not less than $7,555 and not more than $90,649 for the following accidents: (1) The death of an individual at the mine, or (2) An injury or entrapment of an individual at the mine, which has a reasonable potential to cause death. [72 FR 13635, Mar. 22, 2007, as amended at 74 FR 68919, Dec. 29, 2009; 77 FR 76408, Dec. 28, 2012; 81 FR 43455, July 1, 2016; 82 FR 5383, Jan. 18, 2017; 83 FR 14, Jan. 2, 2018; 84 FR 220, Jan. 23, 2019; 85 FR 2299, Jan. 15, 2020; 86 FR 2970, Jan. 14, 2021; 87 FR 2336, Jan. 14, 2022; 88 FR 2218, Jan. 13, 2023; 89 FR 1818, Jan. 11, 2024; 90 FR 1862, Jan. 10, 2025] § 100.5 Determination of penalty amount; special assessment. (a) MSHA may elect to waive the regular assessment under § 100.3 if it determines that conditions warrant a special assessment. (b) When MSHA determines that a special assessment is appropriate, the proposed penalty will be based on the six criteria set forth in § 100.3(a). All findings shall be in narrative form. (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 $9,820 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 $414 for each occurrence of such violation. (e) Violations that are deemed to be flagrant under section 110(b)(2) of the Mine Act may be assessed a civil penalty of not more than $332,376. For purposes of this section, a flagrant violation means “a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury.” [72 FR 13635, Mar. 22, 2007, as amended at 73 FR 7210, Feb. 7, 2008; 74 FR 68919, Dec. 29, 2009; 77 FR 76408, Dec. 28, 2012; 81 FR 43456, July 1, 2016; 82 FR 5383, Jan. 18, 2017; 83 FR 14, Jan. 2, 2018; 84 FR 220, Jan. 23, 2019; 85 FR 2299, Jan. 15, 2020; 86 FR 2970, Jan. 14, 2021; 87 FR 2336, Jan. 14, 2022; 88 FR 2218, Jan. 13, 2023; 89 FR 1818, Jan. 11, 2024; 90 FR 1862, Jan. 10, 2025] § 100.6 Procedures for review of citations and orders; procedures for assessment of civil penalties and conferences. (a) All parties shall be afforded the opportunity to review with MSHA each citation and order issued during an inspection. It is within the sole discretion of MSHA to grant a request for a conference and to determine the nature of the conference. (b) Upon notice by MSHA, all parties will have 10 days within which to submit additional information or request a safety and health conference with the District Manager or designee. A conference request may include a request to be notified of, and to participate in, a conference initiated by another party. A conference request must be in writing and must include a brief statement of the reason why each citation or order should be conferenced. (c) When a conference is conducted, the parties may submit any additional relevant information relating to the violation, either prior to or at the conference. To expedite the conference, the official assigned to the case may contact the parties to discuss the issues involved prior to the conference. (d) MSHA will consider all relevant information submitted in a timely manner by the parties with respect to the violation. When the facts warrant a finding that no violation occurred, the citation or order will be vacated. Upon conclusion of the conference, or expiration of the conference request period, all citations that are abated and all orders will be promptly referred to MSHA's Office of Assessments. The Office of Assessments will use the citations, orders, and inspector's evaluation as the basis for determining the appropriate amount of a proposed penalty. § 100.7 Notice of proposed penalty; notice of contest. (a) A notice of proposed penalty will be issued and served by certified mail, or the equivalent, upon the party to be charged and by regular mail to the representative of miners at the mine after the time permitted to request a conference under § 100.6 expires, or upon the completion of a conference, or upon review by MSHA of additional information submitted in a timely manner. (b) Upon receipt of the notice of proposed penalty, the party charged shall have 30 days to either: (1) Pay the proposed assessment. Acceptance by MSHA of payment tendered by the party charged will close the case. (2) Notify MSHA in writing of the intention to contest the proposed penalty. When MSHA receives the notice of contest, it advises the Federal Mine Safety and Health Review Commission (Commission) of such notice. No proposed penalty which has been contested before the Commission shall be compromised, mitigated or settled except with the approval of the Commission. (c) If the proposed penalty is not paid or contested within 30 days of receipt, the proposed penalty becomes a final order of the Commission and is not subject to review by any court or agency. § 100.8 Service. (a) All operators are required by part 41 (Notification of Legal Identity) of this chapter to file with MSHA the name and address of record of the operator. All representatives of miners are required by part 40 (Representative of Miners) of this chapter to file with MSHA the mailing address of the person or organization acting in a representative capacity. Proposed penalty assessments delivered to those addresses shall constitute service. (b) If any of the parties choose to have proposed penalty assessments mailed to a different address, the Office of Assessments must be notified in writing of the new address. Delivery to this address shall also constitute service. (c) Service for operators who fail to file under part 41 of this chapter will be upon the last known business address recorded with MSHA.