U.S. Department of U.S. Department of LaborLabor

Mine Safety and Health Mine Safety and Health AdministrationAdministration

Office of AssessmentsOffice of Assessments

Topics of Topics of DiscussionDiscussion

Organizational Structure & FunOrganizational Structure & FunctionsctionsPenalty Assessment CriteriaPenalty Assessment CriteriaTypes of AssessmentsTypes of AssessmentsPre-Assessment OpportunitiesPre-Assessment OpportunitiesCollection of Civil PenaltiesCollection of Civil PenaltiesPost-Assessment OpportunitiesPost-Assessment OpportunitiesDelinquent DebtDelinquent DebtSmall Business Regulatory EnfSmall Business Regulatory Enforcement Fairness Act of 1996orcement Fairness Act of 1996Helpful SuggestionsHelpful SuggestionsContact Information Contact Information

Organizational StructureOrganizational StructureOffice of theOffice of the

DirectorDirector

Civil PenaltyCivil Penalty & Assessments& Assessments

CenterCenter

Technical Technical Compliance & Compliance & InvestigationsInvestigations

Wilkes-BarreWilkes-BarreAssessmentsAssessments

CenterCenter

Civil PenaltyCivil PenaltyComplianceCompliance

OfficeOffice

TechnicalTechnical Compliance &Compliance & InvestigationsInvestigations

OfficeOffice

Policy, Systems & Special

Assessments Office

Office of the Director Office of the Director FunctionsFunctions

Administering the assessments program Administering the assessments program pertaining to the assessment and collection pertaining to the assessment and collection of civil penalties under the Mine Actof civil penalties under the Mine Act

Administering the special investigations Administering the special investigations program pertaining to discrimination program pertaining to discrimination complaints filed under Section 105(c) of the complaints filed under Section 105(c) of the Mine Act; and knowing or willful violations Mine Act; and knowing or willful violations under Section 110(c) of the Mine Actunder Section 110(c) of the Mine Act

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Oversees the overall program and Oversees the overall program and management functions of the office, management functions of the office, which include:which include:

Civil Penalties & Civil Penalties & Assessment Center Assessment Center

FunctionsOversees the program and management Oversees the program and management

functions functions

of the Civil Penalty Compliance Office and of the Civil Penalty Compliance Office and the the

Wilkes-Barre Assessments CenterWilkes-Barre Assessments Center

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Civil Penalty Compliance Civil Penalty Compliance OfficeOffice

FunctionsFunctionsTrack status of civil penalty cases & Track status of civil penalty cases & maintain financial & case recordsmaintain financial & case records

Prepare cases for litigationPrepare cases for litigation

Process paymentsProcess payments

Collect delinquent penaltiesCollect delinquent penalties

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Wilkes-Barre Assessment Wilkes-Barre Assessment Center Center Functions

Process violations into regular- & Process violations into regular- & single-penalty proposed assessmentssingle-penalty proposed assessments

Approve Legal Identity Report Approve Legal Identity Report submittals submittals (MSHA 2000-7 Form (MSHA 2000-7 Form Instructions)Instructions)

Conduct research & analysis on mine Conduct research & analysis on mine ownershipownership

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Policy, Systems & SpecialPolicy, Systems & SpecialAssessments Office Assessments Office

FunctionsFunctions

Respond to Freedom of Information Respond to Freedom of Information Act requests & provide violation Act requests & provide violation history reportshistory reports

Process recalls & re-assessments Process recalls & re-assessments involving civil penaltiesinvolving civil penalties

Administer assessment program Administer assessment program information & information & administrative/management activitiesadministrative/management activities

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continuedcontinued

Policy, Systems & SpecialPolicy, Systems & SpecialAssessments Office Assessments Office

FunctionsFunctionscontinuedcontinued

Specially assess violationsSpecially assess violations

Maintain assessment database Maintain assessment database management systemmanagement system

Update policy & procedures under Update policy & procedures under 30 CFR 10030 CFR 100 - Criteria and - Criteria and Procedures for Proposed Procedures for Proposed Assessment of Civil PenaltiesAssessment of Civil Penalties

Conduct data analysesConduct data analyses

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Technical Compliance and Technical Compliance and Investigations FunctionsInvestigations Functions

Oversees the program and management Oversees the program and management functions functions

of the Technical Compliance and of the Technical Compliance and Investigations Investigations

Office.Office.

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Technical Compliance & Technical Compliance & Investigations Office Investigations Office

FunctionsFunctionsOversee the investigation process Oversee the investigation process for:for:

Complaints of miner discriminationComplaints of miner discrimination

knowing or willful criminal violationsknowing or willful criminal violations

Denial of entry & injunctive casesDenial of entry & injunctive cases

Review judicial decisions Review judicial decisions

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Penalty Assessment Penalty Assessment CriteriaCriteria

Size of businessSize of business

History of operationsHistory of operations

Degree of negligenceDegree of negligence

Degree of gravityDegree of gravity

Demonstrated good faithDemonstrated good faith

Operators in violation of the Federal Mine Safety and Health Act of 1977 (Mine Act) can be issued a proposed penalty assessment ranging from $60 to $60,000, based on the following five criteria set forth in 30 CFR 100.3:

Size of BusinessSize of Business

Tonnage produced for production Tonnage produced for production coal operatorscoal operators

Employee hours worked for metal & Employee hours worked for metal & nonmetal production operators & nonmetal production operators & independent contractorsindependent contractors

Determination of the size of the Determination of the size of the mine & size of controlling entity of mine & size of controlling entity of which the mine is a part, is which the mine is a part, is calculated by the previous year’s:calculated by the previous year’s:

History of ViolationsHistory of Violations

Number of violations per inspection Number of violations per inspection day for production operatorsday for production operators

Average violations per year for Average violations per year for independent contractorsindependent contractors

Determined by the total number of Determined by the total number of paid or final violations cited during a paid or final violations cited during a 24-month period, starting 30 months 24-month period, starting 30 months prior to the issue date of the prior to the issue date of the violation which is used to calculate violation which is used to calculate the:the:

Excessive History of Excessive History of ViolationsViolations

Applicable to operators having Applicable to operators having greater than 2.1 violations per greater than 2.1 violations per inspection day & independent inspection day & independent contractors having greater than 50 contractors having greater than 50 violations per year violations per year

Not applicable to mines with 10 or Not applicable to mines with 10 or fewer violationsfewer violations

Only applicable to 104(a) non-S&S Only applicable to 104(a) non-S&S timely-abated citationstimely-abated citations

Degree of Degree of NegligenceNegligence

Inspector’s evaluation of measures taken by Inspector’s evaluation of measures taken by the operator to protect or correct conditions the operator to protect or correct conditions or practices which caused or allowed the or practices which caused or allowed the violation to existviolation to exist

Degree of GravityDegree of Gravity

Inspector’s evaluation of the Inspector’s evaluation of the seriousness of seriousness of

the violation, as measured by the the violation, as measured by the likelihood likelihood

of the occurrenceof the occurrence

Demonstrated Good Demonstrated Good FaithFaith

Timely abatement of a violation Timely abatement of a violation issued for a regular assessmentissued for a regular assessment

Possible adjustments to penalty Possible adjustments to penalty amount include:amount include:

A reduction of 30% if violation is A reduction of 30% if violation is corrected within the time set by corrected within the time set by the inspectorthe inspector

An additional 10 penalty points if An additional 10 penalty points if violation is not corrected within violation is not corrected within the time set by the inspectorthe time set by the inspector

Types of AssessmentsTypes of Assessments

Single Single

Regular Regular

SpecialSpecial

Single-Penalty AssessmentSingle-Penalty Assessment

Section 104(a) non-S&S citationsSection 104(a) non-S&S citations

Violations corrected within time Violations corrected within time set by inspectorset by inspector

No excessive history of violationsNo excessive history of violations

Computer-generated fixed penalty Computer-generated fixed penalty of $60 for violations, as set forth in of $60 for violations, as set forth in 30 CFR 100.4 ::

Regular AssessmentRegular Assessment

Orders, 104(d), 104(a) S&S, & 104(a) non-Orders, 104(d), 104(a) S&S, & 104(a) non-S&S citations not qualifying for single penaltyS&S citations not qualifying for single penalty

Possible adjustments to penalty amount include Possible adjustments to penalty amount include 30% reduction if violation is abated within time 30% reduction if violation is abated within time set by inspector; or additional 10 penalty points set by inspector; or additional 10 penalty points if violation is not abated within time set by if violation is not abated within time set by inspectorinspector

Computer-generated penalty ranging Computer-generated penalty ranging from $72 to $60,000 for violations, from $72 to $60,000 for violations, as set forth in as set forth in 30 CFR 100.4 : :

Special Special AssessmentAssessment

Fatalities & serious injuriesFatalities & serious injuries

Unwarrantable failure to comply with Unwarrantable failure to comply with a mandatory health & safety a mandatory health & safety standardstandard

Operating in defiance of a closure Operating in defiance of a closure orderorder

Denial of right of entry by an Denial of right of entry by an authorized representativeauthorized representative

Individual review & determination of Individual review & determination of penalty assessment up to $60,000 for penalty assessment up to $60,000 for violations, as set forth in violations, as set forth in 30 CFR 100.5 : :

continuedcontinued

Special Special AssessmentAssessment

continuedcontinuedIndividuals liable under Section 110(c) Individuals liable under Section 110(c) of the Mine Actof the Mine Act

Imminent dangerImminent danger

Acts of discrimination under Acts of discrimination under Section 105(c) of the Mine ActSection 105(c) of the Mine Act

Extraordinarily high negligence, Extraordinarily high negligence, gravity or other unique aggravating gravity or other unique aggravating circumstances *circumstances *

* * Violations that do not fall into any other special assessment Violations that do not fall into any other special assessment categories such as multiple violations of health standards; categories such as multiple violations of health standards; 30 CFR Part 48; and, ; and, 30 CFR Part 50

Special Assessment Special Assessment GuidelinesGuidelines

A point system, A point system, MSHA Guidelines for Special Assessment MSHA Guidelines for Special Assessment PenaltiesPenalties, is an additional tool used by the Agency , is an additional tool used by the Agency to compute special assessment penaltiesto compute special assessment penalties

Special Assessor’s Review Special Assessor’s Review CriteriaCriteria

Citations & ordersCitations & orders

Special assessment review request Special assessment review request

Inspector’s notesInspector’s notes

Safety & health conference notesSafety & health conference notes

Report of investigationReport of investigation

Sketches & photographsSketches & photographs

Relevant portions of mine plansRelevant portions of mine plans

In addition to the 5 assessment criteria, In addition to the 5 assessment criteria, a special assessor reviews the following a special assessor reviews the following information, in order to determine a information, in order to determine a special assessment:special assessment:

2006 Assessed Violationsby Type

64%

34%

2%

SingleRegularSpecial

2006 Assessed Violations2006 Assessed Violationsby Average Amountby Average Amount

Regular AssessmentRegular Assessment $406$406

Average special assessments:Average special assessments:Non-accident-relatedNon-accident-related $2,650 $2,650

Accident-relatedAccident-related $23,205$23,205

Director/Officer/AgentDirector/Officer/Agent $814 $814

Miner smokingMiner smoking $244 $244

Pre-Assessment Pre-Assessment OpportunitiesOpportunities

Accompany an authorized Accompany an authorized representative during an representative during an inspectioninspection

Attend the inspection close-out Attend the inspection close-out conferenceconference

Request a safety & health Request a safety & health conferenceconference

File notice of contest/application File notice of contest/application for reviewfor review

An operator may participate in the An operator may participate in the following pre-assessment activities:following pre-assessment activities:

Inspection Close-Out Inspection Close-Out ConferenceConference

Discuss the conditions observed Discuss the conditions observed during the inspectionduring the inspection

Notify the operator of their right Notify the operator of their right to request a safety & health to request a safety & health conferenceconference

Immediately following an Immediately following an inspection, an informal meeting is inspection, an informal meeting is held between the inspector & held between the inspector & operator to:operator to:

Safety & Health Safety & Health ConferenceConference

The request must be made through The request must be made through the district managerthe district manager

The request must be made within The request must be made within 10 days of the notification of 10 days of the notification of rights to a safety & health rights to a safety & health conferenceconference

An operator may submit additional An operator may submit additional information and/or request a information and/or request a safety & health conference with safety & health conference with the district manager, as set forth the district manager, as set forth in in 30 CFR 100.6 : :

Notice of Contest/Notice of Contest/Application for Application for

ReviewReviewThe operator may file in writing The operator may file in writing to the Federal Mine Safety & to the Federal Mine Safety & Health Review Commission Health Review Commission (FMSHRC) within 30 days upon (FMSHRC) within 30 days upon receipt of the issuance of the receipt of the issuance of the citation or ordercitation or order

Filing does not affect the Filing does not affect the enforcement processenforcement process

Collection of Civil Collection of Civil PenaltiesPenalties

A notice of proposed assessment is sent by A notice of proposed assessment is sent by certified mail to the operator, as set forth in certified mail to the operator, as set forth in 30 CFR 100.730 CFR 100.7,, in which they have 30 days to in which they have 30 days to either pay or contest the penaltyeither pay or contest the penalty

Post-Assessment Post-Assessment OpportunitiesOpportunities

Financial review of operator’s ability to Financial review of operator’s ability to continue in businesscontinue in business

Civil penalty contestCivil penalty contest

Appeal of Administrative Law Judge Appeal of Administrative Law Judge (ALJ) decision(ALJ) decision

Further appeal optionsFurther appeal options

Financial ReviewFinancial ReviewIt is initially presumed that the It is initially presumed that the assessment will have no effect on the assessment will have no effect on the operatoroperator

To apply for relief, the operator must To apply for relief, the operator must submit a written request to the submit a written request to the district manager within 30 days of district manager within 30 days of receipt of the proposed assessment. receipt of the proposed assessment. As set forth in As set forth in 30 CFR 100.3(h)30 CFR 100.3(h), the , the operator must:operator must:

Provide financial statements for the Provide financial statements for the most recent 2-year periodmost recent 2-year periodShow how payment of the penalty will Show how payment of the penalty will adversely affect their ability to continue adversely affect their ability to continue in businessin business

Civil Penalty Civil Penalty ContestContest

The operator must file a contest in writing The operator must file a contest in writing to MSHA’s Civil Penalty Compliance Office to MSHA’s Civil Penalty Compliance Office within 30 days upon receipt of the proposed within 30 days upon receipt of the proposed assessment, as set forth in assessment, as set forth in 30 CFR 100.730 CFR 100.7

The penalty amount is decided by an The penalty amount is decided by an Administrative Law Judge (ALJ) in a legal Administrative Law Judge (ALJ) in a legal proceedingproceeding

Appeal of ALJ DecisionAppeal of ALJ Decision

The operator or MSHA must appeal to the The operator or MSHA must appeal to the Federal Mine Safety & Health Review Federal Mine Safety & Health Review Commission (FMSHRC) within 30 days of Commission (FMSHRC) within 30 days of the ALJ decisionthe ALJ decision

The case is decided by the FMSHRC in a The case is decided by the FMSHRC in a legal proceedinglegal proceeding

Further Appeal Further Appeal OptionsOptions

U.S. Court of U.S. Court of AppealsAppeals

U.S. Supreme U.S. Supreme CourtCourt

Delinquent DebtDelinquent Debt

Delinquent debt is collected by MSHA, Delinquent debt is collected by MSHA, Department of Treasury, & Department Department of Treasury, & Department of Justice representativesof Justice representatives

Small Business Regulatory Small Business Regulatory Enforcement Fairness ActEnforcement Fairness Act

of 1996 (SBREFA)of 1996 (SBREFA)

1-888-REG-FAIR (1-800-734-3247) 1-888-REG-FAIR (1-800-734-3247) 500 W. Madison Street, 500 W. Madison Street, Suite 1240 Chicago, Illinois 60661Suite 1240 Chicago, Illinois 60661

Small businesses may submit Small businesses may submit comments about MSHA or other comments about MSHA or other Federal agency enforcement actions Federal agency enforcement actions by contacting:by contacting:

Helpful Helpful SuggestionsSuggestions

Maintain an effective safety & health Maintain an effective safety & health programprogram

Maintain a zero or low violation averageMaintain a zero or low violation average

Timely abate any violations issuedTimely abate any violations issued

Pay penalties on timePay penalties on time

Participate in pre-assessment Participate in pre-assessment opportunitiesopportunities

For inquiries, please contact theFor inquiries, please contact the

Office of AssessmentsOffice of Assessments

Telephone:Telephone: (202) 693-9700 (202) 693-9700

Fax:Fax: (202) 693-9701 (202) 693-9701

oror

visit MSHA online atvisit MSHA online at

www.msha.gov