[Federal Register Volume 74, Number 248 (Tuesday, December 29, 2009)]
[Rules and Regulations]
[Pages 68918-68919]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30608]



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Part II





Department of Labor





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Mine Safety and Health Administration



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30 CFR Parts 50 and 100



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

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

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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: Direct final rule; request for comments.

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

DATES: This direct final rule is effective March 29, 2010, unless the 
Agency receives significant adverse 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 online 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. Direct Final Rule and Significant Adverse Comments

    MSHA has determined that this rulemaking meets the criteria for a 
direct final rule because it involves nonsubstantive changes that deal 
with MSHA's management of the processing of civil penalties. MSHA does 
not anticipate that this direct final rule will 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 this 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 this direct final rule, MSHA will consider 
whether it warrants a substantive response in a notice and comment 
process.
    Elsewhere in this issue of the Federal Register, MSHA is publishing 
a companion proposed rule to speed notice and comment rulemaking should 
the Agency withdraw this direct final rule. The companion proposal and 
the direct final rule are substantively identical. MSHA will consider 
comments to this direct final rule as comments to the companion 
proposed rule and vice versa.

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 changing 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. Section 50.10 of this 
direct final rule, therefore, is changed 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 direct final 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 will no 
longer have to manually review all failure to report violations. 
Instead, a citation will identify the type of accident as either Sec.  
50.10(a), (b), (c), or (d), which will allow MSHA to program its 
automated assessment system to assure that the higher penalties 
required under the MINER Act are assessed. Violations of

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

V. Regulatory Analyses

A. Paperwork Reduction Act Statement

    This final rule does 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 direct final rule does not have an annual effect 
of $100 million or more on the economy; therefore, the rule is not an 
economically significant regulatory action under section 3(f)(1) of 
E.O. 12866.
    The changes contained in this direct final rule are nonsubstantive 
and organizational in nature. MSHA does not anticipate that this direct 
final rule will result in any changes in the way violations for failure 
to report certain accidents are evaluated or assessed. The changes will 
facilitate more efficient use of MSHA's resources and administrative 
processes. The changes 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.

0
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 amends 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

0
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.

0
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

0
3. The authority citation for Part 100 continues to read as follows:

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

0
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]

0
5. Amend Sec.  100.5 by removing paragraph (f).

[FR Doc. E9-30608 Filed 12-28-09; 8:45 am]
BILLING CODE 4510-43-P