C.F.R. » Title 30 » CHAPTER I—MINE SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT OF LABOR › SUBCHAPTER P—CIVIL PENALTIES FOR VIOLATIONS OF THE FEDERAL MINE SAFETY AND HEALTH ACT OF 1977 › PART 100—CRITERIA AND PROCEDURES FOR PROPOSED ASSESSMENT OF CIVIL PENALTIES

30 C.F.R. § 100.5

Determination of penalty amount; special assessment

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(a) MSHA may elect to waive the regular assessment under § 100.3 if it determines that conditions warrant a special assessment.

(b) When MSHA determines that a special assessment is appropriate, the proposed penalty will be based on the six criteria set forth in § 100.3(a). All findings shall be in narrative form.

(c) Any operator who fails to correct a violation for which a citation has been issued under Section 104(a) of the Mine Act within the period permitted for its correction may be assessed a civil penalty of not more than $9,820 for each day during which such failure or violation continues.

(d) Any miner who willfully violates the mandatory safety standards relating to smoking or the carrying of smoking materials, matches, or lighters shall be subject to a civil penalty of not more than $414 for each occurrence of such violation.

(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 $332,376. 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.”

[72 FR 13635, Mar. 22, 2007, as amended at 73 FR 7210, Feb. 7, 2008; 74 FR 68919, Dec. 29, 2009; 77 FR 76408, Dec. 28, 2012; 81 FR 43456, July 1, 2016; 82 FR 5383, Jan. 18, 2017; 83 FR 14, Jan. 2, 2018; 84 FR 220, Jan. 23, 2019; 85 FR 2299, Jan. 15, 2020; 86 FR 2970, Jan. 14, 2021; 87 FR 2336, Jan. 14, 2022; 88 FR 2218, Jan. 13, 2023; 89 FR 1818, Jan. 11, 2024; 90 FR 1862, Jan. 10, 2025]
Notes of Decisions
Cited in 8 cases (2 in the last 5 years), 1974–2023 · leading case: Coal Emp. Proj. v. Elizabeth Hanford Dole, in Her Capacity as Sec'y of Labor, United States Dep't of Labor, 889 F.2d 1127 (D.C. Cir. 1989).
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Coal Emp. Proj. v. Elizabeth Hanford Dole, in Her Capacity as Sec'y of Labor, United States Dep't of Labor, 889 F.2d 1127 (D.C. Cir. 1989). · cites it 5× “” 30 C.F.R. § 100.5 . MSHA’s Program Policy Manual lists a number of factors that an inspector should “look for when making an unwarrantable-failure-to-comply determination,” including “whether the violation is repetitious of a previous violation.”
Sec'y of Labor v. Westfall Aggregate & Materials, Inc., 69 F.4th 902 (D.C. Cir. 2023). · cites it 5× “” 30 C.F.R. § 100.5 (a). This will result in a higher penalty than would be associated with a regular assessment.”
Freeman United Coal Mining Co. v. Fed. Mine Saf. & Health Review Comm'n & Sec'y of Labor, 108 F.3d 358 (D.C. Cir. 1997). “3(d) (1996) (degree of negligence — “no negligence,” “low negligence,” “moderate negligence,” “high negligence,” or “reckless disregard” — is one factor in penalty formula); 30 C.F.R. § 100.5 (h) (1996) (special assessment of penalty may be warranted if violation involved…”
Consolidation Coal Co. v. Fed. Mine Saf. & Health Review Comm'n, Coal Emp. Proj., United Mine Workers of Am., Intervenors, 824 F.2d 1071 (D.C. Cir. 1987). “Under 30 C.F.R. § 100.5 , the Secretary may impose a “special assessment” for "some types of violations [that] may be of such a nature or seriousness that it is not possible to determine an appropriate penalty under” subsection 100.”
Bussen Quarries v. Alexander Acosta, 895 F.3d 1039 (8th Cir. 2018). “This penalty was a special assessment issued pursuant to 30 C.F.R. § 100.5 , which allows MSHA "to waive the regular assessment .”
Sec'y of Labor v. Westfall Aggregate & Materials, Inc. (AMENDED OPINION) (D.C. Cir. 2023). · cites it 5× “” 30 C.F.R. § 100.5 (a). This will result in a higher penalty than would be associated with a regular assessment.”
Nat'l Indep. Coal Operator's Ass'n v. Rogers C. B. Morton (Sec'y of the Interior of the United States), 494 F.2d 987 (D.C. Cir. 1974). “30 C.F.R. § 100.5 (b) (1973). 21 . 43 C.F.”
Coal Emp. Proj. v. Elizabeth Hanford Dole, in Her Capacity as Sec'y of Labor, United States Dep't of Labor, 900 F.2d 367 (D.C. Cir. 1990). “89), the Mine Safety and Health Administration (“MSHA”) issued an interim regulation taking two actions: “(1) temporarily revising its assessment policies to instruct its field personnel to review [non-significant-and-substantial] (“non-s & *368 s”) violations involving high…”
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