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MSHA Proposes Civil Penalty, Citation Changes
 

By Roy Maurer  8/15/2014
 

The U.S. Mine Safety and Health Administration (MSHA) proposed amending its civil penalty regulations by simplifying the criteria for assessing health and safety violations, and increasing emphasis on more serious safety and health conditions, the agency announced.

The proposed rule, published in the July 31, 2014, Federal Register, is in response to the growing backlog of contested civil penalty cases.

“This proposed rule would simplify the process and increase consistency, objectivity and efficiency in the citations and orders that inspectors issue. Furthermore, it would facilitate improved compliance and early resolution of enforcement issues,” said Joseph Main, assistant secretary of labor for mine safety and health.

MSHA is proposing changes to its regular assessment penalty formula only. The regular assessment method provides proposed penalties for most violations, while the agency’s special assessment method allows it to select a penalty amount up to statutory maximums, and is used for cases involving fatalities or willful violations.

When issuing citations, inspectors are required to evaluate safety and health conditions using the following criteria:

  • The appropriateness of the penalty to the size of the business of the operator charged.
  • The operator’s history of previous violations.
  • Whether the operator was negligent.
  • The gravity of the violation.
  • The demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of a violation.
  • The effect of the penalty on the operator’s ability to continue in business.

The agency predicts that total penalties proposed and the distribution of the penalty amount by mine size generally would remain the same, but the proposal would shift the weight assigned to criteria during the penalty-assessment phase.

The proposal increases the emphasis on negligence, violation history and severity “to more appropriately address factors that directly impact miner safety and health,” and places less emphasis on the size of the mine.

For example, the penalty amounts for small metal and nonmetal mines would decrease.

The existing minimum penalty of $112 and the maximum penalty of $70,000 for nonflagrant violations would not change, but minimum penalties for violations that constitute more than ordinary negligence would increase by 50 percent to encourage mine operators to prevent these violations.

MSHA also proposes to limit the authority of the Federal Mine Safety and Health Review Commission (FMSHRC) to review contests of a violation or penalty. The commission is an independent body and often differs from MSHA’s judgments, undermining its efforts, according to the agency.

“When a proposed penalty is contested [before the commission], neither the [MSHA] formula nor any other aspect of these regulations applies,” the agency said.

Good-Faith Incentives

MSHA is considering not just sticks, but carrots also. Under current rules, the agency offers a 10 percent reduction in penalty amounts of a regular assessment where the operator abates the violation within the time set by the inspector. In an effort to provide for increased employer prevention of safety and health hazards, MSHA is considering offering an additional 20 percent (for a total of 30 percent) good-faith reduction in proposed penalties when neither the penalty nor the violation is contested and the penalty is paid before it becomes a final order.

Changes to ‘Significant and Substantial’

“The agency’s proposed changes are significant,” said Brad Hammock, partner in the Washington, D.C., office of Jackson Lewis and leader of the firm’s workplace safety and health practice group. “For instance, the narrowing of choices for negligence may brand operators as negligent for nearly every violation. The proposed changes to gravity are likely to result in higher penalties, because nearly all violations may be classified as ‘serious,’ bypassing the ‘significant and substantial’ definition.” MSHA defines a significant and substantial violation as one that is reasonably likely to result in a reasonably serious injury or illness. Inspectors determine whether or not each violation they evaluate is significant and substantial.

“The proposal narrows the five current choices for inspectors to address injury likelihood to three: unlikely, reasonably likely and [already] occurred,” explained Hammock. If there has been no injury, inspectors may be expected to choose “reasonably likely,” he said. “How inspectors and judges would react to the new penalty criteria remains unclear.”

MSHA encourages stakeholders to view the proposed rule and submit comments. Comments must be received by Sept. 29, 2014.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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