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.