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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
This is being posted to alert and inform the Industry that under
the protection of the Christmas Holidays and hidden by the "Health
Care" maze, MSHA
published this Final and Proposed Rule in the Federal Register
without public hearing or comments. This appears to be an attempt to
exempt the agency from normally required Rule-making process.
Highlights are added by
$afepro.
FYI, the word "nonsubstantive" is
used without definition in this document. The definition is "Relating
to legal principles: law not relating to the essential principles
that a court applies in its work, but to the rules of procedure and
practice".
Adverse comments must be
submitted by 1 March, 2010 as detailed below to prevent this Final
Rule from becoming effective on 29 March, 2010!
Additional commentary will be
posted after further examination of the Dec. 29, 2009 document.
___________________________________________________________________________________________________
[Federal
Register: December 29, 2009 (Volume 74, Number 248)]
[Rules and Regulations]
[Page 68917-68919]
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Part II
Department of Labor
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
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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:
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Federal E-Rulemaking Portal:
http://www.regulations.gov. Follow the online instructions
for submitting comments.
-
Electronic mail:
zzMSHA-comments@dol.gov. 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
silvey.patricia@dol.gov (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 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.
·
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
·
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. E9-30608 Filed 12-28-09; 8:45 am]
BILLING CODE 4510-43-P
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