[Federal Register Volume 74, Number 248 (Tuesday, December 29, 2009)]
[Proposed Rules]
[Pages 68920-68921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30607]



  Federal Register / Vol. 74, No. 248 / Tuesday, December 29, 2009 / 
Proposed Rules  

[[Page 68920]]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 50 and 100

RIN 1219-AB63


Criteria and Procedures for Proposed Assessment of Civil 
Penalties/Reporting and Recordkeeping: Immediate Notification of 
Accidents

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Mine Safety and Health Administration (MSHA) is proposing 
to make nonsubstantive organizational changes to existing regulations 
for reporting accidents and determining penalty amounts for failure to 
report certain accidents. These changes would allow MSHA to automate 
the Agency's assessment process for violations involving immediate 
notification of an accident. They would improve the efficiency and 
effectiveness of MSHA's assessment process.

DATES: MSHA must receive comments by midnight Eastern Standard Time on 
March 1, 2010.

ADDRESSES: Comments must be identified with ``RIN 1219-AB63'' and may 
be sent to MSHA by any of the following methods:
     Federal E-Rulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Electronic mail: [email protected]. Include ``RIN 
1219-AB63'' in the subject line of the message.
     Facsimile: 202-693-9441. Include ``RIN 1219-AB63'' in the 
subject line of the message.
     Regular Mail: MSHA, Office of Standards, Regulations, and 
Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209-
3939.
     Hand Delivery or Courier: MSHA, Office of Standards, 
Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, 
Arlington, Virginia. Sign in at the receptionist's desk on the 21st 
floor.

FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office 
of Standards, Regulations, and Variances, MSHA, at 
[email protected] (e-mail), 202-693-9440 (voice), or 202-693-9441 
(facsimile).

SUPPLEMENTARY INFORMATION: 

I. Availability of Information

    MSHA will post all comments on the Internet without change, 
including any personal information provided. Access comments 
electronically at http://www.msha.gov under the Rules and Regs link. 
Review comments in person at the Office of Standards, Regulations, and 
Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia. Sign 
in at the receptionist's desk on the 21st floor.
    MSHA maintains a list that enables subscribers to receive e-mail 
notification when the Agency publishes rulemaking documents in the 
Federal Register. To subscribe, go to http://www.msha.gov/subscriptions/subscribe.aspx.

II. Companion Proposed Rule, Direct Final Rule, and Significant Adverse 
Comments

    Elsewhere in this issue of the Federal Register, MSHA is publishing 
a direct final rule. This companion proposed rule and the direct final 
rule are substantively identical. MSHA is publishing this companion 
proposed rule to speed notice and comment rulemaking should the Agency 
withdraw the direct final rule. MSHA will consider comments to this 
companion proposed rule as comments to the direct final rule and vice 
versa.
    MSHA has determined that the changes in this proposed rule would 
meet the criteria for a direct final rule because they involve 
nonsubstantive changes that deal with MSHA's management of the 
processing of civil penalties. MSHA does not anticipate that this 
proposed rule would result in any changes in the way violations for 
failure to report certain accidents are evaluated or assessed. MSHA 
expects no opposition to the changes and no significant adverse 
comments. However, if MSHA receives a significant adverse comment, the 
Agency will withdraw the direct final rule by publishing a notice in 
the Federal Register.
    A significant adverse comment is one that explains:
    (1) Why the direct final rule is inappropriate, including 
challenges to the rule's underlying premise or approach; or
    (2) Why the direct final rule will be ineffective or unacceptable 
without a change. In determining whether a comment necessitates 
withdrawal of the direct final rule, MSHA will consider whether it 
warrants a substantive response in a notice and comment process.

III. Regulatory Background

    On March 22, 2007, MSHA published a final rule on Criteria and 
Procedures for the Proposed Assessment of Civil Penalties (72 FR 
13591). The final rule revised the Agency's civil penalty assessment 
regulations under 30 CFR part 100 and implemented the civil penalty 
provisions of sections 5 and 8 of the Mine Improvement and New 
Emergency Response (MINER) Act of 2006. Section 5 of the MINER Act 
specifies penalties of not less than $5,000 and not more than $60,000 
for violations involving failure to report three categories of 
accidents: (1) Death of an individual at the mine; (2) injury of an 
individual at the mine which has a reasonable potential to cause death; 
or (3) entrapment of an individual at the mine which has a reasonable 
potential to cause death. MSHA included this MINER Act requirement in 
the special assessment provision of the existing civil penalty 
regulations. The special assessment process is MSHA's existing 
procedure for manually reviewing violations to determine civil 
penalties.
    Under existing Sec.  50.10, operators must report accidents within 
15 minutes, once the operator knows or should know that the accident 
has occurred. The existing regulation does not distinguish between 
types of accidents, but includes the twelve categories of accidents as 
defined in Sec.  50.2(h). Under the existing procedures for processing 
penalties, MSHA manually reviews every violation for failure to report 
an accident to identify the three categories of accidents for which the 
higher penalty is applicable.

IV. Section-by-Section Analysis

    MSHA is proposing to change the existing regulation addressing the 
immediate notification of accidents in Sec.  50.10 to separately 
reflect the three categories of accidents in section 5 of the MINER 
Act, which require specific penalties for failure to report. This 
proposed rule would change existing Sec.  50.10 to require that the 
operator immediately contact MSHA in the event of the following 
accidents: (1) Death of an individual at the mine; (2) injury of an 
individual at the mine which has a reasonable potential to cause death; 
(3) entrapment of an individual at the mine which has a reasonable 
potential to cause death; or (4) any other accident.
    Under the proposed rule, by changing the immediate notification 
regulation to separately identify the categories of accidents that 
require penalties specified in section 5 of the MINER Act, MSHA would 
no longer have to manually review all failure to report violations. 
Instead, a citation would identify the type of accident as either Sec.  
50.10(a), (b), (c), or (d), which would allow MSHA to program its 
automated assessment system to assure that the higher penalties 
required under the MINER Act are assessed. Violations of

[[Page 68921]]

Sec.  50.10(a), (b), and (c) would automatically receive a proposed 
penalty of $5,000 or more, up to $60,000, under the regular assessment 
provision of Sec.  100.3. Violations of Sec.  50.10(d) would be subject 
to a regular assessment under Sec.  100.3. It is important to note that 
the special assessment provision would continue to apply to failure to 
report violations when conditions warrant.
    MSHA believes that this proposed rule would provide the mining 
community with more transparency relative to violations involving 
failure to report accidents. Specifying the type of accident in the 
citation would make it readily apparent when the violation would be 
subject to the higher penalty. In addition, automating proposed 
assessments for most violations for failure to report an accident would 
improve the efficiency and effectiveness of MSHA's assessment process.
    This proposed rule would redesignate existing special assessment 
provision Sec.  100.5(f) as Sec.  100.4(c), without change. The section 
heading of Sec.  100.4 would be changed to read, ``Unwarrantable 
Failure and Immediate Notification.'' Because these categories of 
accidents would be separately identified in the immediate notification 
regulation in Sec.  50.10 of this proposed rule, MSHA would no longer 
need to manually review them under special assessment. As mentioned 
before, MSHA would continue to review these violations for a special 
assessment when conditions warrant.

V. Regulatory Analyses

A. Paperwork Reduction Act Statement

    This proposed rule would not contain an information collection 
requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.).

B. Executive Order 12866--Regulatory Planning and Review

    Executive Order (E.O.) 12866 requires that regulatory agencies 
assess both the costs and benefits of intended regulations. MSHA has 
determined that this proposed rule would not have an annual effect of 
$100 million or more on the economy; therefore, the rule would not be 
an economically significant regulatory action under section 3(f)(1) of 
E.O. 12866.
    The changes contained in this proposed rule are nonsubstantive and 
organizational in nature. MSHA does not anticipate that this proposed 
rule would result in any changes in the way violations for failure to 
report certain accidents are evaluated or assessed. The changes would 
facilitate more efficient use of MSHA's resources and administrative 
processes. The changes would neither alter the compliance burden placed 
on mine operators nor impact the health or safety of miners.

List of Subjects

30 CFR Part 50

    Investigations, Mine safety and health, Reporting and recordkeeping 
requirements.

30 CFR Part 100

    Administrative practice and procedures, Mine safety and health, 
Penalties.

    Dated: December 22, 2009.
Joseph A. Main,
Assistant Secretary of Labor for Mine Safety and Health.

    For the reasons set out in the preamble, and under the authority of 
the Federal Mine Safety and Health Act of 1977 as amended by the Mine 
Improvement and New Emergency Response Act of 2006, MSHA is proposing 
to amend chapter I of title 30 of the Code of Federal Regulations as 
follows:

PART 50--NOTIFICATION, INVESTIGATION, REPORTS AND RECORDS OF 
ACCIDENTS, INJURIES, ILLNESSES, EMPLOYMENT, AND COAL PRODUCTION IN 
MINES

    1. The authority citation for part 50 continues to read as follows:

    Authority:  29 U.S.C. 577(a); 30 U.S.C. 811, 813(j), 951, 957, 
961.

    2. Revise Sec.  50.10 to read as follows:


Sec.  50.10  Immediate notification.

    The operator shall immediately contact MSHA at once without delay 
and within 15 minutes at the toll-free number, 1-800-746-1553, once the 
operator knows or should know that an accident has occurred involving:
    (a) A death of an individual at the mine;
    (b) An injury of an individual at the mine which has a reasonable 
potential to cause death;
    (c) An entrapment of an individual at the mine which has a 
reasonable potential to cause death; or
    (d) Any other accident.

PART 100--CRITERIA AND PROCEDURES FOR PROPOSED ASSESSMENT OF CIVIL 
PENALTIES

    3. The authority citation for Part 100 continues to read as 
follows:

    Authority:  30 U.S.C. 815, 820, 957.

    4. In Sec.  100.4, revise the section heading and add paragraph (c) 
to read as follows:


Sec.  100.4  Unwarrantable failure and immediate notification.

* * * * *
    (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 
$5,000 and not more than $60,000 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.


Sec.  100.5  [Amended]

    5. Amend Sec.  100.5 by removing paragraph (f).

[FR Doc. E9-30607 Filed 12-28-09; 8:45 am]
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