In December of 2014, the US Federal Mine Safety and Health Administration (“MSHA”) held public hearings on its proposed rule – Criteria and Procedures for Assessment of Civil Penalties (the “Penalty Rule”). If adopted, the Penalty Rule will result in significant changes to MSHA’s current penalty assessment system as well as increase MSHA’s authority to impose civil penalties on mine operators.
The Penalty Rule amends MSHA’s point system resulting in a greater percentage of points allocated to negligence, violation history and severity. Accordingly, these three categories will carry the greatest weight in determining the penalty amount. The Penalty Rule also reduces the number of negligence, likelihood of occurrence, severity, and persons affected sub-categories that inspectors may choose from when issuing a citation. For example, the negligence sub-categories would be reduced from five to three, and the persons affected sub-categories from eleven to two. According to MSHA, the reduction in the various citation categories is designed to simplify the citation process and should result in fewer areas of disagreement and earlier resolution of enforcement issues.
Perhaps the most controversial item in the Penalty Rule is the removal of the Federal Mine Safety and Health Review Commission’s sole authority to review and assess civil penalties in the event of an operator challenge to the citation. Under the new rule, the Review Commission must uphold the penalty if MSHA sufficiently demonstrates fact supporting the citation. However, the General Counsel for the Commission submitted formal comments to MSHA stating that this change is inconsistent with the authority granted to the Commission the Federal Mine Safety and Healt Act.
MSHA has indicated that the comment period for the proposed rule will be extended from January 9, 2015, to March 12, 2015.