[Federal Register Volume 77, Number 249 (Friday, December 28, 2012)]
[Rules and Regulations]
[Pages 76406-76408]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30963]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 100

RIN 1219-AB81


Criteria and Procedures for Proposed Assessment of Civil 
Penalties; Inflation Adjustment

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Final rule.

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SUMMARY: The Mine Safety and Health Administration (MSHA) is revising 
its civil penalty assessment amounts to adjust for inflation. The 
Federal Civil Penalties Inflation Adjustment Act of 1990, (Inflation 
Adjustment Act) as amended by the Debt Collection Improvement Act of 
1996, requires the Agency to adjust civil penalties for inflation at 
least once every four years according to the formula specified in the 
Inflation Adjustment Act. The revised penalties apply to citations and 
orders issued on or after the effective date of this rule.

DATES: Effective Date: January 28, 2013.

FOR FURTHER INFORMATION CONTACT: George F. Triebsch, Director, Office 
of Standards, Regulations, and Variances, MSHA, 1100 Wilson Boulevard, 
Room 2350, Arlington, Virginia 22209-3939, [email protected] 
(email), 202-693-9440 (voice), or 202-693-9441 (facsimile).

SUPPLEMENTARY INFORMATION: 

I. Background

    The Federal Civil Penalties Inflation Adjustment Act of 1990 
(Inflation Adjustment Act, Public Law 101-410, 104 Stat. 890 (28 U.S.C. 
2461 note)), as amended by the Debt Collection Improvement Act of 1996 
(DCIA), (Pub. L. 104-134, 110 Stat. 1321), requires MSHA to review and, 
where appropriate, adjust its civil penalties for inflation, based on 
the cost of living, at least once every four years. It prescribes the 
formula for any such adjustments. MSHA last adjusted its civil 
penalties for inflation in 2008 (73 FR 7206).
    Section 5(b) of the Inflation Adjustment Act provides an inflation 
adjustment formula that defines a ``cost-of-living'' adjustment as--

* * * the percentage (if any) for each civil monetary penalty by 
which--
    (1) the Consumer Price Index for the month of June of the 
calendar year preceding the adjustment, exceeds
    (2) the Consumer Price Index for the month of June of the 
calendar year in which the amount of such civil monetary penalty was 
last set or adjusted pursuant to law.

    Section 5(a) included criteria for rounding the cost-of-living 
adjustment amount as follows:

    Any increase * * * shall be rounded to the nearest--
    (1) multiple of $10 in the case of penalties less than or equal 
to $100;
    (2) multiple of $100 in the case of penalties greater than $100 
but less than or equal to $1,000;
    (3) multiple of $1,000 in the case of penalties greater than 
$1,000 but less than or equal to $10,000;
    (4) multiple of $5,000 in the case of penalties greater than 
$10,000 but less than or equal to $100,000;
    (5) multiple of $10,000 in the case of penalties greater than 
$100,000 but less than or equal to $200,000; and
    (6) multiple of $25,000 in the case of penalties greater than 
$200,000.

    Section 3(3) of the Inflation Adjustment Act defines the term 
``Consumer Price Index'' (CPI) to mean ``the Consumer Price Index for 
all-urban consumers published by the Department of Labor.''
    Section 7 of the Inflation Adjustment Act provides that the first 
adjustment of a civil monetary penalty under the Act may not exceed 10 
percent of such penalty.
    The Inflation Adjustment Act only requires that the cost-of-living 
adjustment and rounding formula be applied to penalties that were 
statutorily established by Congress. The Mine Act, as amended, contains 
eight statutory penalties. Consequently, MSHA applied the formula to 
its statutory civil penalties in 30 CFR Part 100 and is adjusting the 
maximum penalty for failure to provide timely notification to the 
Secretary under section 103(j) of the Mine Act, in Sec.  100.4(c), from 
$60,000 to $65,000. In addition, MSHA is increasing the maximum penalty 
for flagrant violations under Section 110(b)(2) of the Mine Act, in 
Sec.  100.5(e), from $220,000 to $242,000. Applying the formula to the 
remaining statutory civil penalties, regarding the maximum civil 
penalty for regular assessments in Sec.  100.3(a)(1), the two minimum 
penalties for unwarrantable failure violations in Sec.  100.4(a) and 
(b), the minimum penalty for failure to timely report accidents in 
Sec.  100.4(c), maximum daily penalty in Sec.  100.5(c), and the 
maximum smoking penalty in Sec.  100.5(d), did not result in inflation 
adjustments because the increases under the inflation adjustment 
formula were rounded to zero pursuant to the Inflation Adjustment Act's 
rounding rules.
    The Administrative Procedure Act (APA) requires that rulemakings be 
published in the Federal Register and that, generally, agencies provide 
an opportunity for public comment. Notice and an opportunity for public 
comment are not required, however, when the agency ``for good cause 
finds'' that notice and comment ``are impracticable, unnecessary, or 
contrary to the public interest'' (5 U.S.C. 553(b)(B)).
    The decision whether to make adjustments and the amount of any 
adjustments for these Civil Penalties are prescribed by the Inflation 
Adjustment Act and are not within MSHA's discretion. MSHA is required 
to perform mathematical computations based on published cost-of-living 
data and adjust its penalties accordingly. For this reason, the Agency 
has determined that there is good cause that public notice and comment 
are unnecessary and contrary to the public interest, and that this rule 
should be published in final form. In accordance with the APA, this 
final rule is effective 30 days after date of publication in the 
Federal Register.
    MSHA last updated civil penalties according to the Inflation 
Adjustment Act on February 7, 2008 (73 FR 7206, Feb. 7, 2008).

II. Section-by-Section Analysis

A. Section 100.3--Determination of Penalty Amount; Regular Assessment

    Existing Sec.  100.3(a)(1) provides the criteria for determining 
regular penalty assessments and specifies a maximum

[[Page 76407]]

dollar amount for a proposed civil penalty assessment. The maximum 
civil penalty assessment was evaluated using the formulas provided in 
the Inflation Adjustment Act. No adjustment is required. The existing 
maximum civil penalty assessment of $70,000 remains unchanged.
    Existing Sec.  100.3(g) contains a penalty conversion table (Table 
XIV) based on the statutory maximum penalty assessment of $70,000 in 
existing Sec.  100.3(a)(1). Since the statutory maximum civil penalty 
for regular assessments remains unchanged the penalty conversion table 
is unchanged.

B. Section 100.4--Unwarrantable Failure and Immediate Notification

    Existing Sec.  100.4 states the minimum penalties for citations or 
orders issued under section Sec.  104(d)(1) or (d)(2) of the Mine Act. 
It also includes the specific penalties required for failure to timely 
report the categories of accidents specified in section 5(a) of the 
Mine Improvement and New Emergency Response Act of 2006 (MINER Act). 
MSHA included this requirement in a final rule published on March 22, 
2007 (72 FR 13592). In accordance with section 5(b) of the Inflation 
Adjustment Act, MSHA determined the inflation rate based on the 
consumer price index from June 2007 (208.352, the month of June of the 
calendar year in which the amount of the penalty was last set) through 
June 2011 (225.722, the month of June of the calendar year preceding 
this adjustment). This resulted in an inflation rate of 8.3 percent 
[(225.722 -208.352) / 208.352 = 0.083].
    Existing Sec.  100.4(c) states that the penalty for failure to 
provide timely notification to the Secretary under section 103(j) of 
the Mine Act will not be less than $5,000 and not more than $60,000. 
The minimum penalty for failure to provide timely notification was 
evaluated using the formulas provided in the Inflation Adjustment Act. 
No adjustment is required. The existing minimum penalty of $5,000 
remains unchanged. To adjust the existing maximum civil penalty of 
$60,000 for inflation, MSHA applied the 8.3 percent inflation increase, 
which resulted in $4,980. MSHA rounded the increase to $5,000 in 
accordance with section 5(a) of the Inflation Adjustment Act. Final 
Sec.  100.4(c) retains a minimum penalty of $5,000 and increases the 
maximum penalty to $65,000.

C. Section 100.5--Determination of Penalty Amount; Special Assessment

    Existing Sec.  100.5(e) states the maximum penalty for violations 
that are deemed to be flagrant under section 110(b) of the Mine Act. 
MSHA included this requirement in a final rule published on March 22, 
2007 (72 FR 13592). The existing maximum penalty is $220,000 for such 
violation. To adjust the existing civil penalty for flagrant 
violations, MSHA applied the 8.3 percent inflation increase from June 
2007 (the month of June of the calendar year in which the amount of the 
penalty was last set) to June 2011 (the month of June of the calendar 
year preceding this adjustment), which resulted in $18,260. MSHA 
rounded the increase to $25,000 in accordance with section 5(a) of the 
Inflation Adjustment Act. However, this is the first time this penalty 
has been adjusted under the Inflation Adjustment Act and, therefore, 
according to section 7, the adjustment may not exceed 10 percent of the 
penalty. Final Sec.  100.5(e) increases the maximum penalty for a 
flagrant violation from $220,000 to $242,000 ($220,000 + 10% = 
$242,000).

III. Executive Order 12866: Regulatory Planning and Review; and 
Executive Order 13563: Improving Regulation and Regulatory Review

    Executive Order 12866 requires that regulatory agencies assess both 
the costs and benefits of significant regulatory actions. Under the 
Executive Order, a ``significant regulatory action'' is one meeting any 
of a number of specified conditions, including the following: Having an 
annual effect on the economy of $100 million or more; creating a 
serious inconsistency or interfering with an action of another agency; 
materially altering the budgetary impact of entitlements or the rights 
of entitlement recipients, or raising novel legal or policy issues. 
MSHA has determined that this final rule is not a ``significant'' 
regulatory action and a cost-benefit and economic analysis is not 
required. This regulation merely adjusts civil monetary penalties in 
accordance with inflation as required by the Inflation Adjustment Act, 
and has no impact on disclosure or compliance costs. The benefit 
provided by the inflationary adjustment to the maximum civil monetary 
penalties is that of maintaining the incentive for operators to 
maintain safe and healthful workplaces, and not allowing the incentive 
to be diminished by inflation.
    Executive Order 13563 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distributive impacts, and equity). Executive Order 13563 
emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility to 
minimize burden. Congress, in mandating the inflationary adjustments, 
has already determined that any possible increase in costs is justified 
by the overall benefits of such adjustments. This rule makes only the 
mandatory statutory changes. Since only mandatory changes are being 
made, there are no alternatives or further analysis required by E.O. 
13563.

IV. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act (SBREFA)

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.), as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA) (5 U.S.C. 804(2)), generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements, unless the agency certifies that 
the rule will not have a significant impact on a substantial number of 
small entities. As MSHA has determined for good cause that notice and 
public comment are not required for this rule, the Regulatory 
Flexibility Act does not apply and a regulatory flexibility analysis is 
not required for this rule. The rule only adjusts for the effects of 
inflation.

V. Paperwork Reduction Act of 1995

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that MSHA consider the impact of paperwork and other information 
collection burdens imposed on the public. MSHA has determined that this 
final rule does not require any collection of information.

VI. Other Regulatory Considerations

A. The Unfunded Mandates Reform Act of 1995

    Because the final rule simply adjusts for inflation, it does not 
include any Federal mandate that may result in increased expenditures 
by State, local, or tribal governments; nor does it increase private 
sector expenditures by more than $100 million annually; nor does it 
significantly or uniquely affect small governments. Accordingly, the 
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.) requires 
no further agency action or analysis.

B. Executive Order 13132: Federalism

    This final rule does not have federalism implications because it 
does not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. Accordingly, Executive Order 13132, Federalism,

[[Page 76408]]

requires no further agency action or analysis.

C. The Treasury and General Government Appropriations Act of 1999: 
Assessment of Federal Regulations and Policies on Families

    This final rule will have no effect on family well-being or 
stability, marital commitment, parental rights or authority, or income 
or poverty of families and children. Accordingly, section 654 of the 
Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 
601 note) requires no further agency action, analysis, or assessment.

D. Executive Order 12630: Government Actions and Interference With 
Constitutionally Protected Property Rights

    This final rule will not implement a policy with takings 
implications. Accordingly, Executive Order 12630, Governmental Actions 
and Interference with Constitutionally Protected Property Rights, 
requires no further agency action or analysis.

E. Executive Order 12988: Civil Justice Reform

    This final rule was drafted and reviewed in accordance with 
Executive Order 12988, Civil Justice Reform. This final rule was 
written to provide a clear legal standard for affected conduct and was 
carefully reviewed to eliminate drafting errors and ambiguities, so as 
to minimize litigation and undue burden on the Federal court system. 
MSHA has determined that this final rule meets the applicable standards 
provided in section 3 of Executive Order 12988.

F. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This final rule will have no adverse impact on children. 
Accordingly, Executive Order 13045, Protection of Children from 
Environmental Health Risks and Safety Risks, as amended by Executive 
Orders 13229 and 13296, requires no further agency action or analysis.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This final rule does not have ``tribal implications'' because it 
does not have substantial direct effects on one or more Indian tribes, 
on the relationship between the Federal government and Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes. Accordingly, Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
requires no further agency action or analysis.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This final rule has been reviewed for its impact on the supply, 
distribution, and use of energy because it applies to the coal mining 
industry. MSHA has concluded that the adjustment of civil monetary 
penalties to keep pace with inflation and thus maintain the incentive 
for operators to maintain safe and healthful workplaces is not a 
significant energy action because it is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Accordingly, Executive Order 13211 requires no further Agency 
action or analysis.

I. Executive Order 13272: Proper Consideration of Small Entities in 
Agency Rulemaking

    MSHA has reviewed the final rule to assess and take appropriate 
account of its potential impact on small businesses, small governmental 
jurisdictions, and small organizations. This rule does not establish 
any new burdens. It makes the necessary adjustments as required by the 
Inflation Adjustment Act and is therefore consistent with the 
provisions of E.O. 13272.

J. Congressional Review Act

    The Congressional Review Act, codified at 5 U.S.C. 801 et seq., 
provides generally that ``major rules'' cannot take effect until 60 
days after publication of the rule in the Federal Register and delivery 
of the rule to each House of Congress and to the U.S. Comptroller 
General. MSHA has concluded, in agreement with the Office of 
Information and Regulatory Affairs at the Office of Management and 
Budget that this rule is not a ``major rule'' as defined by the 
Congressional Review Act. For this reason, the rule will take effect on 
the date indicated.



List of Subjects in 30 CFR Part 100

    Mine safety and health, Penalties.

    Dated: December 19, 2012.
Joseph A. Main,
Assistant Secretary for Mine Safety and Health.

    Under the authority of the Federal Mine Safety and Health Act of 
1977, as amended, chapter I of title 30, Code of Federal Regulations, 
part 100 is amended as follows:

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

0
1. The authority citation for part 100 continues to read as follows:

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


0
2. Amend Sec.  100.4 by revising paragraph (c) introductory text 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 $65,000 for the following accidents:
* * * * *

0
3. Amend Sec.  100.5 by revising paragraph (e) to read as follows:


Sec.  100.5  Determination of penalty amount; special assessment.

* * * * *
    (e) Violations that are deemed to be flagrant under section 
110(b)(2) of the Mine Act may be assessed a civil penalty of not more 
than $242,000. For purposes of this section, a flagrant violation means 
``a reckless or repeated failure to make reasonable efforts to 
eliminate a known violation of a mandatory health or safety standard 
that substantially and proximately caused, or reasonably could have 
been expected to cause, death or serious bodily injury.''

[FR Doc. 2012-30963 Filed 12-27-12; 8:45 am]
BILLING CODE 4510-43-P