Responding to concerns raised by stakeholders, the Mine Safety and Health Administration has clarified the negligence and gravity classifications in the agency’s proposed rule to amend its civil penalty procedures. 80 Fed. Reg. 7393 (http://www.gpo.gov/fdsys/pkg/FR-2015-02-10/pdf/2015-02399.pdf).
When a citation is written for a violation of a mine health or safety standard, inspectors are required to decide the level of negligence and gravity involved (i.e., on the severity of injury or illness as a result of the infraction), among other things.
The proposed rule, issued last July, would cut the number of negligence categories from the current five to three. The reduction would be accomplished by combining the Low, Moderate, and High Negligence categories into a single Negligent category, which would be assigned 15 penalty points. The other two categories would be Not Negligent and Reckless Disregard.
According to the agency, commenters expressed concern that violations assessed as High Negligence under the existing rule would be classified as Reckless Disregard under the proposed rule, resulting in higher penalties.
To reassure stakeholders that High Negligence and Reckless Disregard would remain distinguishable, MSHA in its clarification noted that Reckless Disregard would continue to mean conduct exhibiting ‘‘the absence of the slightest degree of care.’’ In comparison, the proposed definition of High Negligence is that the alleged offender ‘‘knew or should have known of the violative condition or practice, and there are no mitigating circumstances.’’ Regarding gravity, the agency also proposes to streamline from five to three the number of choices under the sub- criterion of Likelihood of occurrence of injury or illness. Thus No Likelihood and Unlikely would be combined into Unlikely, with no penalty points assigned. Reasonably Likely and Highly Likely would be combined into Reasonably Likely with 14 penalty points. The third and final category would be Occurred.
In its notice, MSHA attempted to clarify the definitions. The proposed definition of ‘‘Unlikely’’ is ‘‘Condition or practice cited has little or no likelihood of causing an injury or illness, ’’ while ‘‘Reasonably Likely’’ is defined as ‘‘Condition or practice cited is likely to cause an injury or illness.’’
Commenters also have expressed concern they might be ineligible for a proposed 20 percent reduction in the penalty amount if, before penalties are assessed, mine operators request a conference with the agency to discuss any citations. However, MSHA assured operators they would be ineligible for the so-called good faith reduction only if a violation is formally contested or the penalty amount is not paid within 30 days. MSHA further noted that if an assessment grouping includes multiple citations and only one is not paid within 30 days or is contested, the remaining citations still would be eligible for the good faith reduction.
MSHA also extended the comment period to March 31.