IN THE MATTER OF: ) ) PUBLIC HEARING ON PROPOSED ) RULE ) ) CRITERIA AND PROCEDURES FOR ) PROPOSED ASSESSMENT OF ) CIVIL PENALTIES ) Pages: 1 through 121 Place: Charleston, West Virginia Date: October 17, 2006 IN THE UNITED STATES DEPARTMENT OF LABOR IN THE MATTER OF: ) ) PUBLIC HEARING ON PROPOSED ) RULE ) ) CRITERIA AND PROCEDURES FOR ) PROPOSED ASSESSMENT OF ) CIVIL PENALTIES ) Hawk's Nest Conference Room Charleston Marriott Town Center 200 Lee Street East Charleston, West Virginia Tuesday, October 17, 2006 The parties met, pursuant to the notice, at 9:10 a.m. BEFORE: PATRICIA W. SILVEY Moderator APPEARANCES: WILLIAM CROCCO, Office of Coal Mine Health and Safety PETER MONTALLI, MSHA's Office of Metal and Nonmetal Mine Safety and Health. JACK POWASNIK, Esquire ROBERT STONE, Chief Economist with MSHA's Standards Office KEITH WATSON, Deputy Director, Office of Assessments GERI GUNN, Office of Standards, Regulations, and Variances, MSHA P R O C E E D I N G S (9:10 a.m.) MS. SILVEY: Good morning. My name is Patricia W. Silvey, and I am the Director of the Office of Standards, Regulations, and Variances for the Mine Safety and Health Administration. I will be the moderator of this public hearing today on MSHA's proposal concerning civil penalties. The members of the panel are, to my right: Keith Watson, who is the Deputy Director of the Office of Assessments. The acting Director of the Office of Assessments, Jay Mattos, who was the Chair of the Civil Penalty Committee was not able, unfortunately, to be with us at this hearing. To his right, Peter Montali, who is with MSHA's Office of Metal and Nonmetal Mine Safety and Health. To my left, Jack Powasnik, who is our attorney on the committee. To his left, Robert Stone, the Chief Economist with MSHA's Standards Office, with my office. And to Robert's left, William Crocco, who is with the Office of Coal Mine Health and Safety. We have another member of the committee in the room, Geri Gunn, and Geri right now, she is with my office, and she's in the back at the registration table. This is the fifth of six hearings on this proposed rule. The first hearing was held in Arlington; the second in Birmingham, Alabama; the third in Salt Lake City; the fourth in St. Louis; this one today; and the final hearing will be on October 19 in Pittsburgh. The comment period for the rule, as many of you know, will close on October 23. And that becomes an important date, because, in accordance with the Miner Act, MSHA must issue regulations to implement the provisions of that Act by December 2006. We will accept documents today that you would like to submit for the record. The hearing will be conducted in an informal manner. As many of you who participated in these MSHA hearings know, members of the panel may question witnesses, and witnesses may ask questions of the MSHA panel. Scheduled speakers will make their presentations first, after which time others will be allowed to speak. The transcript of this hearing will be posted on the MSHA website within a week. Before I discuss the provisions of the proposal, I want to give you a very short overview of the civil penalty process, beginning with the clarification of four terms that are used throughout the proposal. The first is citation. The inspector issues a citation, as many of you know, for a violation of any MSHA standard, rule, order, safeguard, or regulation. The inspector sets the time to abate the condition. The second is an order. The inspector issues an order under several circumstances. One, when a violation is not abated within the time allowed by the inspector. Two, when the inspector finds a violation caused by an unwarrantable failure of the operator. Or three, when the inspector determines that an imminent danger exists. An order requires withdrawal of affected miners until the violation is abated. It does not necessarily require that the entire mine be shut down, only that area affected by the violation. The third term is significant and substantial, or, as we refer to it in MSHA, S&S. An S&S violation is one that is reasonably likely to result in a reasonably serious injury or illness. The inspector makes the S&S determination at the time of the issuance of the citation. Finally, unwarrantable failure. This has been defined by case law to be aggravated conduct constituting more than ordinary negligence. Under the Mine Act, MSHA proposes penalties, and the Federal Mine Safety and Health Review Commission, or I might refer to it as the Commission, assesses penalties. A proposed penalty that is not paid or contested within 30 days of receipt becomes the final order of the Commission. Penalties that are contested before the Commission are reviewed de novo. We will use the term "assessment" to refer to MSHA's proposed assessments, as well as assessments of the Commission. The Mine Act requires MSHA and the Commission to consider six criteria in assessing civil penalties: The size of the business, the operator's history of previous violations, whether the operator was negligent, the gravity of the violation, the operator's good faith in abating the violative condition, and the effect of the penalty on the operator's ability to continue in business. The first five criteria are applied to compute the penalty amount. The final criterion is applied after the penalty is proposed upon request by the mine operator, and the mine operator must send in supporting documentation if the operator believes that the penalty will negatively affect the company's ability to continue in business. MSHA will review this information and may adjust the penalty. MSHA published the proposed rule in the Federal Register on September 8. A copy of the proposal was placed on MSHA's website. Basically, the proposed rule does two things: It revises MSHA's existing civil penalty program to increase penalty amounts, and to improve the effectiveness of MSHA's civil penalty process. These changes are intended to induce greater mine operator compliance with the Mine Act and MSHA's safety and health standards and regulations, thereby improving safety and health for miners. Second, the proposal implements three provisions of the Mine Improvement and New Emergency Response Act of 2006, which I will refer to as the MINER Act. The proposal does not change the way inspectors issue citations. Under the proposal, inspectors will make factual determinations with respect to safety and health violations, and will issue citations and orders as they do now. Also, please note that while both the Mine Act and the MINER Act contain provisions for criminal fine, this rule concerns only civil penalties, as the name implies. Under the existing rule, MSHA has three types of assessments: single, regular, and special. I will address each type of assessment. I'm going to begin with the single penalty. And at this point I want to clarify for the record what we have done with respect to the single penalty. The existing rule provides for a $60 single penalty for non-S&S violations that are timely abated, and where the operator does not have an excessive history of violation. The agency proposes to delete the single penalty. But in so doing, the agency will replace it with the regular formula. And by that I mean the non-S&S violations will now be computed through the regular, under the proposal, would be computed through the regular formula assessment. And it does not mean that MSHA would not assess penalties for non-S&S violations. The agency believes that eliminating the single penalty and processing those non-S&S violations through the formula system will cause mine operators to focus their attention on preventing all hazardous conditions. The second aspect of the proposal are regular assessments. Regular assessments are derived by assigning points for the statutory criteria, then converting the total points to a dollar amount. Regular assessments are computer-generated through MSHA's management information system. The proposed rule would make a number of changes to the process, and to the tables for determining penalty amounts. The first change is a change to the size criterion. The size criterion includes operator size and controller size. For coal mines, operator size is measured by tonnage of coal produced by that mine during the previous calendar year. For metal and nonmetal mines, operator size is measured by hours worked at the mine during the previous calendar year. And size for independent contractors is measured by total hours worked at the mine. Under the proposal, the maximum number of points for operator size would increase from 10 to 20. The proposal would continue to assign no points for the smallest operators, and those are coal mines that produce up to 15,000 tons of coal; metal and non-metal, with 10,000 or less hours worked; and independent contractors who have worked up to 10,000 hours at all mines. Please note a clarification to the preamble of the proposal with respect to the size of existing coal mines. The preamble stated that according to 2005 data, nearly half of the existing coal mines had annual tonnage of up to 15,000 tons. But this figure, however, included 463 surface facilities that do not produce coal. So if you were to exclude those non-producing facilities from the total number, we would get a more accurate number, which would be one fourth of producing coal mines had annual tonnage of up to 15,000 tons. The proposal makes no changes to size points for controlling entities. In the proposal we solicited comments on whether, in considering the size of the operator, greater weight should be placed on the size of the controlling entity. I invite you to address this issue at this public hearing, or in your written comments. History of violations. The proposal includes several changes to the history criterion. It would shorten the time period for determining violation history, change independent contractor history from an annualized number to the total number of violations, and add a new component for repeated violations of the same standard. And overall, we would increase the maximum number of history points. Under both the existing rule and the proposal, only violations for which the penalty has paid or finally adjudicated, or included in determining an operator's history. Also under the proposal, the time period for determining history would be shortened, from 24 months to 15 months. MSHA believes that the shorter time period would more accurately reflect an operator's current state of compliance. Both the existing rule and the proposed rule base history for production operators on violations per inspection day. Under the existing regulation, history for independent contractors is based on the average number of violations over the past two calendar years. The proposed rule would change this, and use the total number of violations during the previous 15 months. The agency believes that there is no need to annualize the number of violations, since history would be based on 15 months. In the proposal MSHA solicited comments on this approach to determining violation history. That is, whether an annualized average should continue to be used. I invite you to address this issue, also. The maximum number of penalty points for this component of violation history would be increased from 20 to 25. Significantly, the proposal adds a new component to the history criterion for repeat violations of the same standard. Under the proposal, penalty points are added for more than five repeat violations of the same standard during the preceding 15 months. Under the proposal, repeat violations would be determined according to the way the standard in cited. And under the proposal, we used the paragraph basis for citing standards. For example, a violation of Section 56.14101(a)(1) would not be considered in determining a repeat violation of 56.14101(a)(2). MSHA solicits comments on this approach to determining repeat violations. And in the proposal, MSHA also solicited comments on two additional aspects of repeat violations: whether penalty points should be based on the total number of repeat violations, or on the number of repeat violations per inspection day. And whether repeat violations should include all violations, as was the case in the proposal, or only S&S violations. The new component of violation history -- i.e., repeat violations -- would add up to 20 penalty points. The next criterion is negligence. The proposed rule would retain the existing five levels of negligence, and would double the maximum number of penalty points that could be assigned for negligence from 25 to 50. Under the proposal, penalties would increase proportionately for operators who exhibit increasingly higher levels of negligence. Gravity. The proposal would retain the three proponents of gravity -- likelihood, severity, and number of persons potentially affected -- but would increase the maximum number of penalty points from 30 to 88. Good faith in abating the violation. The existing rule adds 10 penalty points if the operator does not abate the violation within the time specified by the inspector, and reduces the total penalty by 30 percent if the violation is timely abated. The proposed rule would decrease the reduction for timely abatement from 30 percent to 10 percent, and no penalty points would be added for violations that are not timely abated. The penalty point conversion table. The dollar amounts on the existing conversion table range from $72 to the $60,000 maximum. The minimum regular assessment is $60, as stated earlier. The proposed rule provides a maximum of 208 penalty points, and would begin with $112 to the statutory maximum of $50,000. The dollar amount of the penalty increased steadily under the proposal as the number of penalty points increased. The maximum penalty of $60,000 is reached at 140 points. Special assessments. Special assessments are processed where the violation is of such a nature that an appropriate penalty cannot be determined using the regular formula. The existing rule lists certain categories of violations, such as fatalities or serious injuries, that must be reviewed by the agency to determine if a special assessment is appropriate. The proposed rule would remove this list. By so doing, however, MSHA would retain its discretion to determine which types of violations would be reviewed for special assessment without being limited to a specific list. MSHA anticipates that the proposed regular assessment provision would provide an appropriate penalty for most types of violations. And this change would allow the agency to focus its enforcement resources more on field enforcement activities, rather than administrative review activity. The proposal would shorten the time allowed to request a health and safety conference with a district manager. We've received a lot of comment on this provision throughout this, at each one of the public hearings, we've received a lot of comments. Under the existing rule we allow 10 days to make this request. The proposal would shorten the time to five days. Finally, the proposal implements the civil penalty provisions of the MINER Act. Although these provisions are included in the proposal, the provisions were effective at the time that the MINER Act became effective. In addition, the agency has issued a procedural instruction letter to MSHA personnel which contains information for processing violations consistent with the MINER Act. And I will discuss those three provisions separately. The first one is unwarrantable failure citations and orders. Under the MINER Act there are minimum penalties of $2,000 and $4,000 respectively for unwarranted failure citations and orders. The proposed rule includes these two provisions. And basically, under the existing procedures, any citations, unwarrantable failure citations and orders consistent with the MINER Act are either processed through the regular assessment or a special assessment, and will be given those minimum penalties. Penalties for flagrant violations. The MINER Act established a new penalty of not more than $220,000 for flagrant violations. And the MINER Act defined flagrant violations as those involving 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. As stated earlier, these are processed through a special assessment, and under the proposal would be processed as special assessments. Failure to notify. The MINER Act establishes a penalty of not less than $5,000, not more than $50,000, for failure to timely notify MSHA in case of death or injury or entrapment with a reasonable potential to cause death, as these are processed as special assessments. Please sign the attendance sheet in the back of the room before you leave, if you haven't done so. And as I stated earlier, we will post transcripts of the public hearings on our website. The transcript will include a full text of the opening statement and the specific issues for which the agency seeks additional comment. We will now begin. And if you would please begin your presentation by stating your name and your organization clearly for the reporter. And before I call the first witness, I do want to also add that we have another member of the Civil Penalty Rule-Making Committee with us here today, and inadvertently I forgot to introduce her. And that's Linda Weitershausen, and she's in the back of the room. I'm sorry, Linda. MS. WEITERSHAUSEN: That's all right. MS. SILVEY: Now we can begin, having done that. Our first witness will be Dick Homko with Ohio Valley Coal Company. Mr. Homko. MR. HOMKO: Good morning. MS. SILVEY: Good morning. MR. HOMKO: My name is Richard Homko, and I am the Mine Safety Director of the Ohio Valley Coal Company. I would like to thank MSHA and this panel for the opportunity to provide comments on the proposed civil penalty rule, a rule which will have a widespread effect on the industry in auditing the matter that MSHA seeks. At the Ohio Valley Coal Company Number Six Mine, it's an underground coal mining operation in Ashtabula, Ohio. We employ 507 people. The mine has one long-haul section and four continuous-miner sections operating at this time. We mine five millon tons of coal annually. We take the safety of our employees as our absolute top commitment. It is our moral and ethical responsibility to protect the health and safety of our employees. The proposed rule would be very harmful to the safety efforts of responsible operators. Civil penalties are not an incentive to safety, nor do they have any positive effect on our or any other responsible operator's safety efforts. We strongly urge MSHA to significantly modify the proposed rule and return to the prior penalty system, to the extent possible. Some of the provisions of the proposed rule are statutory-based and cannot be affected by rule-making procedures. Our comments will be more aimed at the changes in which MSHA has some discretion, or otherwise statutory, but subject to the interpretation. The changes as a whole are a misguided attempt to increase safety by punitive actions against operators. The result will be greatly increased civil penalties, in effect tripling them. Our specific comments are as follows: 100.3(b), appropriateness of the penalty to the size of the operator's business. MSHA has proposed to increase the penalty points to the size from an old maximum of 10 to 20 for the mines over two million tons of production. MSHA contends that it is to make the monetary penalties proportional, and therefore increase compliance. This view is seriously flawed and discriminatory. Large operations are inherently safer. This proposed change has a reverse effect of punishing size, which is generally a safety enhancement. The series of mine disasters that led to the MINER Act were at smaller mines. This is typical of the proposed rule, and shows the disconnect between the reality at the mining operations and the MSHA bureaucracy. 100.3(d), negligence. The old five-tier system determining points to be assigned for negligence was effective, and has been retained by MSHA. But the points of the upper three tiers increased and doubled at the level of reckless disregard. Our view is that the increase should not apply to moderate negligence, as this is not a volatile stage of culpability and is subject to a wide variation of interpretation. 100.3(e), gravity. MSHA has increased the potential from a maximum of 30 points under the previous rule to 88 penalty points under the proposed rule. Historically, the gravity portion of a citation is the most frequently contested item by our company in the health and safety conferences conducted with the agency. This is primarily due to the inspector's determination of the gravity being speculative in nature and subject to individual interpretation. This excessive increase in penalty points is unwarranted, and potentially subject to variance. 100.3(f), demonstrated good faith of the operator in abating violations. In this misguided section, MSHA actually decreases the beneficial effect of timely abatement of violations by operators. Previously, an operator could receive a reduction of 30 percent for timely abatement. Now it is only 10 percent, a disincentive rather than an incentive to timely compliance. 100.3(g), the penalty conversion table. This now sets a floor of $112 per penalty. It is inappropriate to set such a floor for non-significant and substantial penalties in mere paperwork violations. This is the purpose for which the single-penalty assessment was designed. This has also been eliminated at Section 100.4 of the proposed rule. The deletion of the single penalty and the floor of $112 will have an effect of merely increasing bureaucracy and inefficiency, and will not have any real effect on safety compliance. The concentration of MSHA and the operators should be on the elimination of potential S&S violations. The elimination of the single penalty causes the intent to be blurred. Lumping all violations, both S&S and non-S&S, into one category actually diminishes the emphasis on S&S. This is a further example of the lack of a practical approach of MSHA to the real issues. 100.4, unwarrantable failure. Much of the proposed rule in this area is designed to implement the statutory requirement of the MINER Act. As such, there is little discretion possible. It is difficult to gauge the effect of one proposed change, the elimination of the list of specific categories that can be the basis of a special assessment. Our view is that this has not been a problem before, so why change it; and that any change would probably lead to an increase in special assessments which, if blatant, can be assessed at $220,000. This is an unacceptable combination and provides MSHA too much discretion. 100.6, procedures for review of citations and orders. The timely period for requesting a health and safety conference has been reduced from 10 days to five days. There is no reason for the change. The rule goes on to incorporate certain statutory disclosures. MSHA predicts that for each 10-percent increase in penalty for violations, there will be a three-percent decrease in the probability of the occurrence. This appears bogus, as compliance at responsible operations is not driven by penalty costs, but by other motivations. This is a cynical attitude by MSHA, and indicates a punitive mindset rather than a safety-mindedness. Further in the disclosure portion, MSHA states that the proposed rule is economically feasible for the mining industry, because the anticipated expected increased in penalties will be $15.9 million, equal to seven percent of the coal mine sector revenue of $22.1 billion in 2004. This again shows a disconnect between the economic challenges faced by especially the underground coal mines and the understandings of MSHA. I thank you. I'll be glad to answer any questions. MS. SILVEY: Thank you, sir. I have a few comments. First of all, just to say for the record -- and probably if one were to look in the transcript of the hearing so far they would find it replete in the record -- and that is, we've heard a lot of comments that these penalties, the proposal was punitive in nature. And of course, you know, I guess one could look at it one way or another. But primarily what we are doing is making, we issued a proposal to change the existing rule, and, as you stated in your comments to me, implement the provisions of the MINER Act. And the penalties in the Mine Act and the MINER Act, the ones that are involved in this proposal, are civil penalties. And they are not meant to be punitive in nature. Now, you know, I guess it depends on what side of the fence, from what side of the fence you are looking at. And you can say that you can construe them as punitive. But I would suggest to you that they were not intended, when the Congress passed the Mine Act, to be punitive in nature. And when we issued the proposal, we did not intend for them to be punitive in nature, but civil in nature, but also to induce compliance with the MSHA safety and health standards. And then that leads me to the second point, the deletion of the single penalty, and your comment about the non-S&S and the mere paperwork violation. And some of the people here have heard me discuss this. Clearly, the non-S&S violations were meant to cover mere paperwork violations. But the non-S&S violations were also meant to cover some violations that probably the inspector did not feel should fall in the category of S&S, but if they were left uncorrected they might lead to an S&S violation. So it was with that purpose in mind, quite honestly, that we felt like the single penalty should be deleted, and everything should be rolled into the formula system. As a matter of fact, I've heard a lot of testimony so far about open, lids not on trash cans and broken light bulbs, and things like that. And I did ask some of the commenters if they would send some of those violations to me. I wanted to look at them so I could see exactly what our inspectors were doing out there. So I anticipate that I would -- and I know I have some MSHA people in the audience here today, and I suspect they would like to see some of what our inspectors are doing, too. With that in mind, though, as we go forward with this hearing today, I would like all of you who are here to just let you all know that that sort of par report led the agency to do what it did in issuing the proposal. On the special assessment, one of the things -- and maybe it didn't come through like the agency intended. One of the things on the special assessment that we intended to do by deleting it, I believe there were eight categories. I'm not sure, there were eight. By deleting the specific eight categories that were under the special assessment, we really intended that there would be fewer violations processed through special assessment, and more would be processed through the regular formula system. And hence, my statement that by doing so, we wouldn't spend so much administrative time on the special assessments, and that would free up our field enforcement resources to do enforcement activity. And I think it hasn't come across like that. It seems like by deleting the categories and giving MSHA the discretion, people are assuming that more violations would be processed under the special assessment. But that wasn't our projection of what was going to happen. Because we felt that by increasing the penalties under the regular formula system, the regular formula would more appropriately take care of more penalties. And I really just have some clarifying comments. One of the things I did want to ask you, Mr. Homko. And that is, you made a statement that large operations are inherently safer. And I have heard that throughout these hearings, also. And I don't know that I would disagree with you with respect to that. But on that particular statement, do you have safety and health data that you could provide on that statement, when you say they're inherently safe? MR. HOMKO: I already feel that with a larger mine, you have more resources to use to contribute to the health and safety of employees. Some of the things that we can do at our mine, at the beginning of every week, review all violations that were issued the previous week. We go over the accidents that were issued the previous week. We have a safety talk, you know, that we discuss with each shift at the beginning, before they go into the mine. That probably takes anywhere from 20 to 30 minutes. But we're a larger operation; we can afford to do that. We have other crews in the mine that we, what you call hot-seat, and they stay at the mining operation until those guys get in. We have an opportunity to put more people in the safety department. I worked in the safety department for years when we only had two people who were here. In the past year we've increased that; we now have four people in the safety department that are able to do safety audits, do inspections, watch people work, do job safety analysis, you know. Watch a boulder face, make sure he's got his hands off the steel, make sure he's not riding his hand on top of the boulder or settled at the head. I think that a larger operation has the opportunity to do these things, where some of the smaller operations you've got people doing two or three jobs. And they might be the safety director, the personnel manager, the mine foreman, all rolled into one. In a larger operation you have the opportunity to specialize in certain areas and work on those things. That's just the way I feel. MS. SILVEY: Okay. Okay, thank you. Next we have William Snyder, RRPS, Inc. MR. SNYDER: I'm William Snyder. I am with RRPS, Inc., limestone quarry in Worcester, West Virginia. We've owned and operated a small limestone quarry for over 40 years, my family has. Recently had a visit from the Small Mine Office. And I was real impressed with this fellow. He came down and had lots of great resources that are certainly going to help me prevent accidents and injuries and other problems in our quarry. And we do have problems in our quarry. We're a small quarry; we have 11 employees, 11 miners. Really, he had a lot of great material, but none of it addressed a lot of issues that confronted us, like burnt-out taillights and small, minor type of violations. There's really nothing you can do to help me with that; that's something that just happens in the course of our business. The problem with this is it makes even those violations, those minor violations, pretty significant to me. I've looked at the SBAREFA analysis, and that's just kind of ridiculous, that SBAREFA. It says that it's going to increase my average penalty by $179, if you look back there at Table 6-5. Percentage increase in total average of proposed civil penalty assessments. If you look there, like amount size four is six to 19. We're looking at for metal/nonmetal, $179 increase in penalties. And I'll write the check right now. That would be great, if that's all it's going to increase, $179. But government tends to expand to the limits of its authority. And these penalties, when I see, when I've gone back and looked at penalties we've had and kind of calculate them under the new system, I think we're going to go from $60 to $1300 or $1500 a penalty. So something that is kind of a minor thing that was costing $60, like a broken taillight or a broken, not even a brake light, a taillight, a $60 penalty, is going to cost me $1300 to $1500. And this brief analysis, when you start reading it, it is just ridiculous. Somebody has concocted these numbers to justify the analysis, and to allow it to extend to people like me. It's crazy. These numbers are just jumbled up, contrived things. A good way to think of it maybe, when you start looking at how much it's actually going to cost me to pay these increased penalties, is in what does it cost in tons of product. Because that's a pretty average thing. And there's becoming a big disparity between coal mines and metal/nonmetal limestone guys like me. It takes me, if I have to pay a $1300 -- I'm sorry, let's back up. The disparity between coal mines and other mines continues to widen. Limestone quarry size is determined by hours worked. Coal mine size is determined by tons produced. That means if I do more maintenance, more training, things like that, I'm being penalized, because those are hours worked for miners. In coal mines, they can do all the maintenance and training they want, and they're not penalized any for that. The more I train and maintain, the higher the size element of my penalty is going to be. If you consider how many tons it takes to pay the average MSHA projected penalty for a 6-to-19- miner site is $294 for coal mines. And that requires, I'm sorry -- for limestone, a $294 average penalty is going to require 59 tons of my product to go through the gate to pay for that penalty. A similarly sized coal mine, a size like me, with an average penalty of $252, they're only going to have to sell five tons of coal to pay that penalty. And that's a big difference. I guess my, if I could hone in on anything here, it's that SBAREFA analysis. It's just defective, and it needs to be looked at. It should not stand to justify changing these rules. You need to keep a single-penalty assessment. It's a valuable tool for minor infractions. Calculating the history, that's a whole new element that can add, what is it, 80 points? I mean, those are points that are just added in, that weren't there before. And if you're going to do that, do it on significant and substantial violations. Because it's hard to keep some of these minor things from occurring fairly routinely. And they always seem to happen when an inspector shows up. And even then some of our violations are under the general-duty clause, which can have dozens of different actual violations all captured under general duty. So here you're going to have a general-duty-type violation where we might have a pretty good history of those, but they're all different violations, all heaped under general duty. So if you're going to start calculating history of general-duty violations, that's going to get high very quickly. That's about all I've got right now. Thank you. MS. SILVEY: Thank you. Would you explain to me again your comment on general duty? Tell me what you said. I didn't understand. MR. SNYDER: Well, we get violations like housekeeping, or wastebaskets overflowing, or things like that. And it just comes down under general duty; that's what the violation is for. And you know, you can have a bunch of different violations under that standard that are different things. But if they're heaped under one classification -- MS. SILVEY: Well, you were calling them general duty, but you were saying, but it is obviously with MSHA, because MSHA doesn't have a general duty clause. It's a specific standard. But you see it, you see this particular standard, the housekeeping standard, as a general-duty-type standard. MR. SNYDER: Right. That's, yes. MS. SILVEY: That's what you're saying. MR. SNYDER: Yes. MS. SILVEY: Okay. Yes. On this SBAREFA analysis, because a lot of your comments went to that. And you did give, you even provided some comment today on the SBAREFA analysis. And clearly, in doing this analysis, because we have to comply with the government requirements for proposing a rule, we made certain assumptions in that amount system. And as I said, you gave me some comments here today. But what I would suggest that you do, if there are parts of that analysis that you disagree with, and you can specifically cite to the provisions that you disagree with and why, that would be very beneficial to us as we move forward to developing the final rule. That would help us. MR. SNYDER: Definitely. MS. SILVEY: Like one of the things you said, you talked about the hours worked versus the tonnage for coal. Now, historically that's how we've done it in metal versus coal, primarily because of the nature of the industry. I mean, metal is so diverse in terms of the metal/nonmetal industry. It's so diverse in terms of the items, products produced. But if you could be specific on some of the assumptions that we -- and when you read through that, the assumptions that we made, whether we were right or wrong in making the assumptions -- if you disagree with them, then tell us. And if you would substitute something; tell us specifically what you would substitute. That would be useful for us. And I will say that for everybody who's here, also. MR. SNYDER: You know, the SBAREFA analysis is just a conflict from the beginning, because it requires that you demonstrate that the proposed rule won't negatively affect my business, my small business. But the whole purpose of a penalty is to negatively affect your small business. And so what they've done here is they figured out a way to make it look like it's not. They're talking about a .1 percent increase in penalties. And, you know, I think that everybody knows that given the opportunity to increase the fine from $60 to $1300, I think everybody knows which way this is going to go. It's going to go to $1300 or so. MS. SILVEY: Oh, not necessarily. And in the SBAREFA analysis, as I said, we have to show certain things. And so we made certain assumptions when we did this analysis. Now, one of the things, it is not to show that whether the penalties negatively affect your business. That really isn't the basis of what we have to show. MR. SNYDER: You have to certify that the proposed rule would not have a significant economic impact on a sanctioned number of small entities. MS. SILVEY: Right. That's right. MR. SNYDER: I can tell you this will have a significant impact on my small entity. Absolutely. MS. SILVEY: Yes. But what we do is, we make that certification in the aggregate. Now, and as you say that to me, that's fine. But I would ask you then if it would have a significant economic impact on your small business then, if you provide us some written comments, and you show us exactly how it will significantly -- data-wise, based on the data -- affect your small business. Did you want to add something to that? MR. STONE: Yes, let me say a couple things. I'm probably the person who concocted that analysis that you referred to in SBAREFA. It is possible that you have a particular citation that would have gone from $60 to $1500, $1300. But I believe that's highly unlikely. And I will say that we have received at least one comment on the books in order to provide an increase of that scale, $60 to over $1,000. At least that one example we received was not very high. -- on the way back down to, I mean it was higher than $60, but it was, I believe, $200. I would invite you to submit the citations you have and your calculations as to how it would have gone up by that percentage. It's possible. But like I say, on the average, I would stand by our estimates. And so if you have a particular case, or even a better variety of your single penalties, if you could provide us your recalculations for a set of them, we'd like to see those. We'd be surprised if you had a variety of them that went up to over $1,000. I'd be surprised, but it's possible. The other thing is that, I guess as Pat said, in doing this SBAREFA analysis, we do what we call a threshold test, against whether it's a significant impact on a substantial number of small entities. And we do a threshold test of one percent of revenues. And it is smaller than that; in this case, substantially smaller than that. It's not that we won't be impacted, but that maybe it's not what we do to meet the threshold to be a significant impact on a substantial number. We had, unlike many agencies, we actually break it down into more than one category. Traditionally for the mining industry, the Small Business Administration calculates the small activities being 500 or fewer entities. And we do a test for that. Because historically MSHA has viewed mines with fewer than 20 employees as having characteristics that are different than mines with close to 500. We've done a secondary special analysis like we did here. But again, the numbers for us, at least on the average, we're nowhere closer to it. In your case, we're accurate, as I say, for going from $60 to $1500, and if this were representative of the industry, then obviously our calculations would be seriously in error. But I don't believe they are. MR. HOMKO: I'll bet the truth is somewhere in the middle there. I'll bet they're higher than you think, and probably lower than I can project. MR. SNYDER: Well, you might be right, but I'm not so sure that's true, either. MS. SILVEY: One of the things I'll go back and say, this analysis is an aggregate analysis. And so therefore, we don't portend that it would accurately reflect, if I were to take a violation from the 2005 data, which is the data that we used, that it would be that, that it would be exactly what we say it is in the average aggregate for that particular violation. So it might be a little different for one particular violation, because it's an analysis in the aggregate. But what I suggest everybody do is when you read the assumptions that we made, and I have gone through those assumptions, and maybe later on during this public hearing today it might be that I might need to do that. But when you read the assumptions of how we took the data, all violations for 2005, and how we applied the existing penalties to them under the existing rules, and then penalties under the new proposal, and the numbers that we got. And then at each stage, what we did at the next stage, and then how finally we got the numbers that are in the, as you call it, the SBAREFA analysis. And at each stage of the process we made certain assumptions. And there the mining public might disagree with our assumptions. And I have said to people, if they disagree with our assumptions, then provide us your disagreement, the basis on which you base your disagreement, and we will take that into consideration. MR. SNYDER: Thank you. The other thing, I hope there are some more limestone people in here, because I want to hear what they have to say. But please remember, it's a five-dollar product for me, and a $50 product for coal, or better, you know, when times are good. And that makes a big difference. That's something that really needs to be considered. MS. SILVEY: Okay. MR. SNYDER: Thank you. MS. SILVEY: We appreciate your comments. Thank you. The next speaker will be Matthew Bonner with Mulzer Crushed Stone. MR. BONNER: Good morning. MS. SILVEY: Good morning. MR. BONNER: My name is Matt Bonner, and I'm with Mulzer Crushed Stone. We are a limestone, third- generation, a family-owned company. We've got 13 MSHA locations with the greatest number of 50 people, and the fewest number of three, at one location, with an average of about 20 employees per site, as an average. The gentleman who spoke earlier, I'm in complete agreement. Took a lot of the thunder out of talking about this, per se. We have written comments that we'd like to submit. They go into the details of it. But my heart goes out to the guy back here, as well as to the people within our industry. And rather than talk about specific numbers, talk about what this means to the mine community where we are in southern Indiana. I know that we're up here in coal country, and it's a complete different business grouped into the same pot, and that's a different argument altogether. We see that the penalty portion of what is being done is kind of reactive, rather than being proactive. And what I mean by that is, we give our employees complete buy-in to our safety program, using behavioral-based studies and giving them ownership to run the safety within our organization. And when they get a penalty or get a citation, it is direct, it goes directly back to the employee, and they take it to heart. The gentleman who spoke earlier about a large operation having more buy-in or being a safe location, it may be the effect at his location; but at ours, we're allowed to do the same thing, within a small group of people. We have not seen any data that supports that the dollars in penalties increase or improve safety within where we are. We have a mutual respect with MSHA in our area, that we don't have the problem with picking up the phone and talking to them directly. It's a great organization where we are, and our people respect them, as well. In regards to the penalty itself, we want it to be enforced consistently. And I'll go as far as even saying I wouldn't necessarily have a problem with what is being proposed if the standards or the codes that are written are objective, rather than subjective. In our notes here I've actually got a picture of an S&S citation at one of our sand-dredge operations that I'll pass along to you guys afterwards. But what it is, it's a floating dock that's pushed up next to the bank that the dredge operator climbs onto at the beginning of a shift and at the end of a shift, to ride a jumboat out to the dredge. The employee had bought new Redwing boots to wear to work. And rather than to step in the wet mud or the wet sand -- we call it mud -- he put a piece of the catwalk down across that bridgeway, and the inspector cited it as an S&S for no handrails. We're talking about 16 inches down to no inches, just to avoid getting his new boots dirty. And when we see penalties like this, it tends to lead us to, first of all, the employee becomes upset because he's directly responsible for the safety of the program in his location. And we see that this automatically puts a wedge between MSHA and Mulzer Crushed Stone, or within other industries. And we see this as just one of many within where we are is in southern Indiana, in regards to the subjective nature of the citations that we deal with. We contested this one, and the person we contested it with, not mentioning names, his exact words were he had to take into consideration the opinion of the inspector. Opinion of the inspector. In regards to repeat violations or penalties on repeat, we see there are a lot of standards that are grouped together that have the potential within some of our larger locations to be problem areas. I mean, the guy mentioned earlier housekeeping, but I looked at safe access, catwalks regarding toe boards and openings in elevated walkways and things of that nature. It's a broad spectrum of areas that get grouped into one single standard that is cited. And that is an issue that we face on an ongoing basis within Indiana. In regards to conferencing, reducing the time frame to five days, we go from Griffin, Indiana, which is four miles from the Illinois border, all the way to Charlestown, Indiana, which is on Ohio's border. And our office is in the middle of that, and it takes sometimes two days to deliver inter-company mail, and then for us to go back and sit down with the safety committees and address these things, five days is not feasible to giving the ownership of our safety program to our employees. We feel that the trend that is current is adequate. And we've even come close in some situations to feeling if we can contest a citation based on that time frame. And I want to make sure that was, you know. When it comes to this type of stuff, it's basically we're at the mercy of the inspector when it's subjective, and the penalties get increased. I don't have a problem if the penalties get increased, as long as the standards and the programs are more objective. It's hard to train an employee or teach an employee what exactly the standard says, when it's based on the interpretation of the inspector as a whole. I don't think that money is ever a solution to problems. I see the Fortune 500 companies and larger companies. They would be very upset if their philosophy was let's just throw money at the problem, whereas there are better, more practical solutions to addressing the safety of our miners today. Getting employees to buy into the safety culture and addressing the issues is the key. You know, if it was all about penalties to keep companies in the straight with safety, then that money could easily be put back into the mining organization and say, okay, show me a receipt where you spent this money on safety of your employees, where that isn't an option. But when you look at the overall picture of what limestone is, and that's at $5 -- he gets better than we do; around $4 where we are -- compared to what other metal/nonmetal as well as coal receive in the community. We just don't want to see this drive a wedge between our employees here completely taking a proactive approach in their safety program, to becoming defensive and not wanting to participate or allow MSHA to be the respectful organization that we deal with and enjoy. MS. SILVEY: Okay, thank you. I do have -- okay. Why don't you, you are the next speaker, why don't you do yours? And then I'll have the rest. I'm sorry. Brian Peters, Mulzer Crushed Stone. MR. PETERS: My name is Brian. I am with the Safety Department of Mulzer Crushed Stone. As Matt, my co-worker said, we're a small family-owned mining business, been in the business for about 50 years. We operate 13 mine sites. Some are sand, some are gravel, some are stone; all limestone. And one is an underground small new start-up underground stone mine. We have less than 300 employees spread out over those different sites, with the smallest site having three people, and the largest site having around 50 people. The company is founded and based on family owned and operated. The owners of the company stand hand-in-hand every day with the co-workers. They have the direct management over it. The average length of an employee working in our company is over 10 years. You know, people come to work for us; they work for us for their lives. They stay with us. It's a good company to work for. They are part of the process. There's profit-sharing that goes on with the employees. They have ownership in what they do every day, and they are dedicated to safety. It's hard to, one of the points that you said, it's hard to explain to an employee when their profit-sharing check is going to go down for a month because an MSHA fine went up, that it's not a punitive fine. You know, that's directly affecting them. They take it personally when they get a citation. They work to not get those citations. They do their best. The people working with them are friends and family. It's not uncommon we have more than one instance where we have grandfather, father, and son working at the same facility, and they don't want to see those people hurt. It's not an adversarial role between us and them at all. But to them it's punitive when you increase the number of fines. And a couple of examples I want to give was, in the eight years that I've been with the company we have had two orders issued to us. And one of the orders was for first-aid cards at one of our locations that had four employees in a small sand pit. And it was over the issue of the inspector required that one of the employees have a first-aid card on him at the time of inspection. Okay? We provided the inspector with training information that proved that every one of the four employees had annual safety training and first aid training. But the inspector wrote an order saying no, they had to have a physical card; our training records weren't good enough. Now, this was before we had to call Duluth to get a conference, and we called the Office of Field Supervisor. And the Field Supervisor said no, your inspector is wrong, don't issue it. So they did not execute that order. But in today's world, where it would go to Duluth, there would be no way to avoid that, or it would have been executed, and that fine for that site might have been a $15,000, $20,000 order. Shutting down that mine for something that we had proof of training for. Goes back to the subjectivity of the inspector there. Another example. A second order was at one of our other sites that has approximately 30 employees. And the inspector found that we were short by two hours on our annual safety training. We had provided six hours. It was January 30 of the current year. Our annual safety training was scheduled a few days later in February. The year before we had done the annual safety training in January; this year it had gotten scheduled erroneously for February. But we do ongoing safety training throughout the year. They had six hours of the safety training already. Well, that resulted in an order, because we did not have the eight hours of annual safety training. Even though it was only eight days later than the year before. It would have been a year and eight days since the training would have occurred. They had six of the eight hours, and that was also a $500 fine for the order. Under today's penalties, that would be approximately a $17,000 fine for that order. And I just feel that if that's not punitive, I'm not sure what is. I understand we messed up. We missed it by those eight days. And they said if it would have been in the same calendar month, that would have been okay. You know, in fact, we were told that if you had trained the year before on January 1, this year on January 31, you're okay. That's a year. But January 30 and February 7 wasn't okay. That wasn't a year, even though it was less than the time frame that was acceptable. And things like that would result in huge penalties that would have a serious adverse condition on our company. And lastly, I don't think that I agree with some of the other people who spoke today also, that increasing the fines leads to more safety for the workers. You know, in the past, with NSSGA, we partnered, and we've had this partnership with MSHA. We signed this statement and hung it on our wall a few years ago, here's the new NSSGA, Natural Stone, Sand and Gravel Association, partnership with MSHA. We're working together. We've gone through slam risk in the last two years. We have this great relationship and we're working together. But I think increasing the fines just leads to more of an adversarial role of you against us, and does not lead to more partnership or directly leads to more safety for our workers, which is our ultimate goal. MS. SILVEY: Thank you. I will start back with a couple of comments. First of all, I was going to ask you when you were making your comments, Mr. Bonner, that graphic you showed of the dredge. And you said that I was going to ask you, did you request a safety and health conference, but you said you contested it. What do you mean when you say you contested it? Did you request a safety and health conference? Or did you do the formal contesting? MR. BONNER: We called to Duluth, which is our regional office. MS. SILVEY: That's your district, yes. MR. BONNER: And dealt with him. And he's the one that told me, he said the inspector had sent pictures in, as well, and looked at it. And he said he had to take the word of the inspector's opinion over the pictures and documentation of it. MS. SILVEY: So what are you saying, then? That nothing was done with that being at the district office? MR. BONNER: That is correct. That is correct. MS. SILVEY: And what happened then? MR. BONNER: Brian and I made a phone call. We spoke with him in Brian's office regarding this, and he told us that he would get back with us and let us know what we needed to do next. And we didn't hear anything about it. And then going on probably for a little over a month, then we made phone calls. And they said it was too late to do anything else from that point forward. So we just paid the citation. MS. SILVEY: You just paid -- MR. BONNER: Paid the penalty. MS. SILVEY: The penalty, okay. But you want to submit that for the record. MR. BONNER: Yes. Yes. MS. SILVEY: Okay. One of the things, and we have heard a lot of this also, and this is a different hearing, so to speak. But I understand people saying that because the actions of the inspectors are what lead to the penalty, to the citations, and then to the subsequent penalties. And I've heard a couple things throughout these hearings. One being that you know, everything would be fine. We asked you for some consistency, we know that you have standards that are subjective, that lead to subjective interpretation. And I would say, knowing both sides of MSHA, metal/nonmetal side and the coal side, the standards are probably -- not probably, strike probably -- the standards are more subjective on the metal side. And part of that is because of the nature of the industry. As I said earlier, the metal industry is a much more diverse industry and a much wider industry to come up with standards that kind of cover a lot of different situations in and of -- the standards are more performance-oriented. And so therefore they lend themselves to more subjectivity. The coal standards are more design-oriented and more specification- directed, and a little bit less subjectivity there. But what does an agency do in a situation like that? The agency will try to train the inspectors and work with the supervisors, and what we try to do. And that's all we can promise. You work on it, and you try to increase consistency, and to minimize the subjectivity. And that's what we -- and even we are doing that now. We heard comments about the number of persons potentially affected that the inspectors write with respect to a citation. So those are the kinds of things that we can try to do. We will take, if you will give us that at the end, and we will look at that. I'm glad to hear you say about your -- and we would today commend your company for your commitment to safety, and the employees buy in, both of you have said that the employees buy into safety and health. Because I think we in MSHA believe that only through the commitment of the company and the employees, and MSHA, will we achieve our ultimate goal, which is complete health and safety. The issue that you had with the first aid card, that issue was resolved. But the second issue was the two hours. That's the issue. You all paid the penalty on that one. MR. BONNER: Right. MS. SILVEY: Okay. I don't have any more. Do any of you have anything? MR. MONTALI: One question. You did say that you reviewed some citations where you had a $500 penalty, which would have increased to approximately $17,000? MR. PETERS: Seventeen thousand, that's right. MR. MONTALI: Could you provide us that citation, so we can look at that? Because I realize that the penalties will increase, but I wasn't aware that they would increase that much. And I'm not saying you're wrong, but I would like to see that citation so we can actually put it through the formula to see exactly if that is the case. MR. BONNER: Okay. That was the order that I was talking about. We provided that to NSSGA, and they ran it through for us. Some of us figured out what it would be, and that was the number we got back. MS. SILVEY: Was that unwarrantable? That one was not unwarrantable? Or was it? MR. BONNER: No. MS. SILVEY: Okay. MR. BONNER: You know, we did have some information that was brought to our attention, and some comments, where there were some penalties where they had an increase, a dramatic increase, and we actually went through them. And it was an increase, but it wasn't nearly as much that was given to us. And that's one reason I'd like to see that citation. If you can provide us with it, we'd appreciate that. MR. SNYDER: One clarification. Are you saying that NSSGA said that when they ran it, that the penalty itself went from $500 to $17,000? Or is that the cost of the down time as a result of the order? MR. PETERS: No, that didn't include down time. Down time was, I went out and pulled all the people in and we did two hours of training after we argued that -- well, there was a side issue we had to argue that we could include the word "or" in our mine training plan. We just had "and," and we had to add that. But we did two hours of training, we went back to work. We had two hours down time. That was not included. MR. BONNER: I had one question, in fact, for you all. And that was, is there data that's provided to the industry that shows or supports that the penalty changes will affect the safety of the miner? Do we have anything that we can get our hands on that will validate or show that this has been looked into, or something? That we're not trying to see if it works, but to actually see that this is an effective means of making the employee safer. MS. SILVEY: Yes, I would say with some humor that I'm glad you asked that. But in a way, I am glad. I had written a comment down here to myself, but I didn't follow up on it. And it was while you were testifying, too. That what our analysis provides is a qualitative assessment of the benefit of civil penalties. Now, granted -- and I'll say this to everybody here -- it does not provide a quantitative assessment of the benefits. And in providing the qualitative assessment -- you all might look at me funny when I say this -- we went beyond what's required for regulations for a regulatory proposal type of accounting. When we do a standard, when MSHA proposes a change to a standard, then we have to, we have to do an analysis of the projected costs of the industry compliance with that standard. But what penalties are, penalties are the cost of non-compliance. So basically -- and it's not treated the same as doing a regulatory provision or standard regulatory provision. But when we did this penalty proposal, we still did the analysis that Robert spoke of earlier, and that you all, certain ones that you referred to. And even those penalties are the direct result of non-compliance. And in so doing, we qualitatively projected that increased penalties -- and using the same basis which the Congress used when it put the Mine Act in place in 1977 and included the penalty provision -- we used the assumption that penalties, when appropriate, would provide an effective inducement for mine operator compliance. Now, what we did is, in providing the qualitative benefits, we did certain assumptions, and we assumed that when the penalties would go up a certain amount, that operators would, because of the high penalties, would expend more money and improve compliance. And that that improved compliance would ultimately then result in reduced violations and reduced penalties over time. That's what I said I might end up giving you that full assumption. Now, some people might disagree with us, but those are the assumptions that we used when we did our analysis. And the assessment is a qualitative assessment, clearly. I would say that to all of you. We don't have direct data in the record that shows these penalties will go up 250 percent, and we'll have a 20-percent improvement in fatality rates and injury and illness rate. No, we don't have that. But we do have a qualitative assessment. MR. BONNER: Is that documentation public? MS. SILVEY: That's what is included in the analysis. That's all in that regulatory economic analysis. And all of the assumptions that are in there. And that's why, say if you have disagreements with the assumptions in there, just let us know, and any specific disagreements you might have. MR. PETERS: I had one comment on that point there. I would suggest that if the point of the penalty is to help compliance and into safety more that the agency look at what other similar agencies, like Environmental Protection Agency, does, and be willing to take part of that penalty assessment and let you spend that money on abatement safety issues, rather than just being a monetary penalty page of the agency. MS. SILVEY: Okay. I'm glad you said that, I truly am glad you said that. And that would be something that Congress would have to do, by the way, and which, you know, might be a good idea. But the penalty that is leveled upon the mining sector because of violations of the Mine Act, that penalty goes to the Treasury. It doesn't come to the agency, it goes to the U.S. Treasury. And therefore, into the general fund of the United States. So, you know. MR. BONNER: Understanding that, still, you know, if you could take like the gentleman's example earlier, if he got a $1300 fine for a taillight and he was able to spent $300 of that to fix his taillight and pay his mechanic, you know, that would solve the problem as well as taking some of that money is not just punitive. MS. SILVEY: Correct. MR. BONNER: And the last comment I would have also was that I would suggest also -- I know this isn't part of this rule -- that you look at changing that policy of having to go to a district office for the conference, versus in the past we used to be able to go to the field office supervisor who had more direct dealings with and understanding of our operations, rather than having to go a hundred miles away to someone that you've never seen, never faced, and doesn't understand your operations. MS. SILVEY: Okay. MR. MONTALI: I have one comment on that. Previously you were correct that under MSHA's jurisdiction for metal and nonmetal mining industry, that the field office supervisors would handle the conferences. And this was changed for the reason that they wanted more consistency, you know, with the conferences, and they wanted one individual that was not in that particular field office that had that jurisdiction for that particular mine. Therefore, they would be more consistent with the decisions that were made, you know, throughout that whole district. And actually coal mine health and safety has been doing this for a number of years since the early nineties in that particular way, so we wanted to be consistent with metal and non-metal and coal also, and be consistent with the decisions that were coming out. So all the field office, it would apply to all the field offices the same. MS. SILVEY: Thank you. You know, I guess we should have a break. Thank you. You can see how reluctant I am. Maybe we should take a 10-minute break, but 10 minutes, please. (Whereupon, a short recess was taken.) MS. SILVEY: Okay. At this time we will hear from Gary Trout, United Mine Workers of America. Oh, excuse me. Before we hear from you, Mr. Trout, I need to make a statement that I didn't make in my opening statement this morning, for the record. And this is, the proposed rule -- I spoke about that -- included a requirement that requests for health and safety conferences be in writing. MSHA is considering adding a requirement that the conference request include a brief statement of the reason why each citation should be conferenced. MSHA believes that this change will assure that parties requesting a safety and health conference focus on the issue to be conferenced, and this will help expedite the conference process by providing the district manager with necessary information prior to conducting the conference. MSHA solicits comments on this change. And with that read into the record, Mr. Trout, thank you. MR. TROUT: My name is Gary Trout. I am the Health and Safety Representative of the United Mine Workers of America. And I would like to thank MSHA and this panel for holding this public hearing and allowing me to speak. My comments today will be brief and to the point. As I read the rule for proposed assessments of civil penalties, I found it to be somewhat confusing, to say the least. The proposed changes are intended to induce greater mine operator compliance with the Mine Act by improving health and safety of miners. How can this be accomplished when you, one, eliminate single-assessment violations; two, show favoritism towards small mines; three, reduce from 24 months to 15 months the violation history; and four, reduce penalties for certain operators? MSHA states that in 2005 there were 75,394 single penalties, up from 69,078 in the year 2003. Using MSHA's numbers for 2005, single-penalty assessments represented approximately two thirds of all violations. So eliminating them means eliminating two thirds of all penalties. The proposed regulation is not clear. Does this mean that MSHA inspectors will no longer write these types of violations? MSHA needs to enforce all the Mine Act, not just parts of it. With the increase in coal prices, numerous small mines have started up here in West Virginia. Many large companies not only have large mines, but also have one-unit small mines. No consideration should be given to operator size when determining penalty amounts. To do so would create a flawed and biased system. In order to have a level playing field, all operators, large and small, should be treated the same. As for history of violations, MSHA proposes reducing the relevant time period from 24 months to 15. By doing so there will be fewer violations that will have to --. MSHA claims that the reduction more accurately reflects an operator state of compliance, but I disagree. An operator may have numerous violations appealed in the courts in a shorter time frame, but would not do an adequate job of identifying chronic problems, which is the purpose behind levying higher fines for repeat violations. In closing, I would like to read an excerpt from "Criteria and Procedures" from "Proposed Assessments to Civil Penalties," part 103, which states, "The effect of the penalty on the operator's ability to continue in business will not be affected by the assessment of a civil penalty. The operator may, however, submit information to the district manager concerning the financial status of the business. If the information provided by the operator indicates that the penalty would adversely affect the operator's ability to continue in business, the penalty may be reduced." Panel members, I thought those days were gone. But has MSHA already forgotten about Sago and Elm? I believe fines should be increased for repeat violators, and the assessment of civil penalties must be evenly applied to all mine operators to assure they understand and comply with the system. The effect on the operator's ability to continue in business should not be taken into consideration. The union is convinced that efforts to create a structure that considers operator size along with the ability to continue in business will be a flawed and biased system. And I thank you. MS. SILVEY: Thank you, sir. I would like to clarify for the record, Mr. Trout? MR. TROUT: Yes. MS. SILVEY: If you wouldn't mind for a minute. I would like to comment on your statement on the single penalty, and again clarify for the record what the agency did in the single penalty, with the single-penalty provision. We would delete or eliminate the single penalty, the $60 single penalty, under today's rule, but replace it with all non-S&S violations, which would still be designated non-S&S. They would be processed through the regular formula system. And by so doing, they would receive a higher penalty. So it would not be at all that we would be, will MSHA inspectors no longer write these violations. Yes, the answer to your question, yes, MSHA inspectors will write these violations. And they will be subjected to penalties. They would be, under the proposal, subjected to higher penalties. They would be subjected to penalties through the form of assessment, through the regular assessment process. So by deleting the single penalty, it's really, as I said in my opening statement, it's deleting the single penalty, and replacing it with the regular formula system for assessing those penalties. Just for clarification, too. In terms of consideration to size, we've gotten a lot of comments on the size criteria. But in my opening statement I mentioned the six criteria that the statute includes, that MSHA and the Review Commission must apply when assessing penalty. Size is one of those criteria. So that's why the agency takes into consideration size. We proposed to make some changes to size. And that is, to take into consideration less of a difference with respect to size. But the statute does say we should take into consideration the size of an operator's business. As well, the statute says the effect of the operator's ability to continue in business. And as I explained that, that's sort of an after the fact. We do not take into consideration the effect on the operator's ability to continue in business in computing the penalty. We only take that into effect if, once the operator is sent the penalty, the operator says that the penalty would negatively affect his or her ability to continue in business. But then the operator has to submit supporting data, data which supports that contention. So that is the way the process works. And just so that everybody knows the things that tie it to the statute, and the things that we have to do. MR. WATSON: I've been in assessments for five years, okay, the last five years. And during that time, that provision about an operator's ability to remain in business -- you know, that they can request it through the district or directly through us -- has always been there. And I would say there's probably less than two dozen cases in the last five years where an operator has actually made that claim to us. And out of those two dozen cases, maybe one or two of them proved that it would affect their ability to stay in business, because they have to provide financial information to support their claim, and it is rare for them to get a reduction as a result of that. MR. TROUT: But if you have two operators, regardless of the size, why should you penalize one and not the other? We should have a level playing field out there. MS. SILVEY: Because of size. MR. TROUT: Pardon? MS. SILVEY: Are you saying size? MR. TROUT: Yes. MS. SILVEY: But on the size, the main reason we take that into consideration as a factor is because the Mine Act says we must take it into consideration as a factor. But we've got comments from everybody that we should not take it into consideration. We've gotten that not just from you; we've gotten comments from other members of the public. MR. TROUT: And if an operator is not fiscally responsible enough to take care of the operation, why should he remain in business? MR. WATSON: Well, that's the operator's choice, to stay in business or not, based on -- MR. TROUT: I understand that. But if he's not financially capable of doing that, if he's got an operation that is safe, and his employees have a safe place to work, he doesn't have a problem. But if he don't, he's got a big problem. MR. WATSON: Yes. MS. SILVEY: Anybody else? MR. CROCCO: Say Gary, before you go, you heard what Pat said about the proposal sending all of the violations through the regular penalty formula, and getting rid of the single penalty. Now that you understand that better, do you have an opinion as to whether it would be preferable to use the regular assessment formula for everything, or still have a single penalty? MR. TROUT: I think we really need the single penalty to stay in our view, and I'll tell you why. I think if the inspectors go out and does their jobs, they'll have a tendency not to write certain violations because there's no penalty there, and maybe deal more with the compliance assistance -- and say well, if you fix this, we're not going to issue any payment, or there's not going to be any effect if they do issue a payment. That's just my opinion, looking at it from a glance. To be honest with you, I read the summary about two or three times. It's very confusing to me to try to understand it. It's pretty confusing. I know it is to all of our committee people, because we've had them to read it. And even the ones that's not going to speak here today made the comment that it was very, very confusing. But again, getting back to that, I think we could be headed down a road to having some problems with it. Unless we get it across to the inspectors that this is really going to help, I think you're going to find a lot of inspectors who won't write violations. They're going to write the S&Ss. MS. SILVEY: I want to say to everybody, the inspectors will still write the S&S violations like they do today. Helping us here from the Coal Mine Health and Safety, Pete's here, Bill's here. The inspectors will still write the S&S violations, and they'll write the non-S&S violations. The only difference is the non-S&S violations won't get the $60 single penalty under this proposal. Right here, under this proposal, the non-S&S violations won't get the $60 single penalty; but instead, they will be processed through the regular formula system, in the assessment database management system. They will be processed through that system, and will get a higher penalty than the $60 penalty. And that is the basis of the proposal, and that is the basis of all of the analyses in the proposal. But if after this hearing is over there are those of you who want to discuss that in more detail with me, because I don't want to leave here, I don't want to leave Charleston without everybody understanding this proposed rule and the effect on the single penalty. Okay. Thank you, sir. We will next hear from Roger Horton, United Mine Workers of America. MR. HORTON: Good morning. MS. SILVEY: Good morning. MR. HORTON: My name is Roger Horton. I'm a United Mine Workers member, and proud of that fact. And I'm here today to visit this distinguished panel, and to give comment. I first came here pretty much unaware of the entire content of the provisions. You have somewhat explained in detail the proposal in regards to a single assessment and how it's to be determined, and where it's to be placed. That is offensive to me. But I began my mining career in 1974, some time back. I worked in a small operation. It was a conditional section. Then we progressed to a continuous miner section, and then from there I progressed to the surface, and also some conversion time. So I've seen MSHA interacting in a big, big mining application. And they had done a very good job, the inspectors that I've been associated with, with the tools that had been given them. And I understand it's your responsibility to give them those tools in order to comply with the Acts in themselves. But to put it simply, today the industry has done this: it has progressed tremendously. And MSHA's inspectors have done this: they have diminished. It is not uncommon for an inspector today to not be able to comply with the Act as far as a number of inspections are concerned. He cannot do the complete number of mines that he has been assigned to. And it's going to be very difficult, at best, for them to complete their inspections this year. As the industry grows at such a rapid pace with the constant need of coal, inspectors are under tremendous amounts of stress and time constraints to complete their assigned tasks. I am very concerned that the proposal will have a negative effect, in that they will be hard-pressed to understand it. How can you determine who, and how do you propose to instruct these inspectors to carry these new provisions out? That is really my concern. How will they understand to do that? That is the question I have. MS. SILVEY: Well, the inspectors basically, and I think I said that in my opening statement, these regulations will cause no changes to the way the inspectors do their business. They have been trained now at the Mine Academy for new inspector training. They go to refresher training in the prescribed period, and they have training in the districts. And they will inspect and issue citations, and mark the citations -- and that is, make an assessment of the conditions at the mine site -- in the manner in which they do that right now. So that aspect of the inspector's job won't change. MR. HORTON: Okay. In regards to the operator if he doesn't abate in the time required with MSHA-made mine standards within the abatement time, issue a withdraw order, or fine your operator up to $6,500 per day until the condition is corrected. We do not believe that any abatement time should be extended unless extreme litigation conditions will bring an operator into compliance. And withdrawal should immediately be issued, and only work to correct the cited conditions should be permitted. A penalty of $6,500 should be assessed while the abatement work is being done, and applied every day until work is completed. The AC specifies the six statutory criteria used to determine the amount of the fine. These include the appropriateness of the penalty to the size of the business, the operator's history of previous violations, whether the operator was negligent, the gravity of the violation, demonstrated due faith on the part of the operator to correct the condition rapidly, and the effects of the operation's ability to continue in business. The assessment of civil penalties must be evenly applied to ensure the operators understand and comply with the decision. Therefore, all citations, all violations of a specific regulation carry the same baseline penalty for operators regardless of other conditions or factors. For instance, the citation issue for a violation of 77400, combustible materials, carries a fine of $800, or an operator of 20 to 500 miners must be applied the same amount through all the operations, regardless of size. Put simply, the initial assessment should take no more factors into consideration. The union also believes that the fines should be increased, and base that decision upon application of certain other conditions or factors. These will include, A, the operator's previous violation history over 24 months, the degree of operator negligence, the gravity of violations, and the number of people who were or would have been affected by the existence of such conditions being permitted to continue to exist. There should be no circumstances or factors that are permitted to mitigate the amount of the assessment. This must include giving no consideration to the size of the penalty in reference to the size of the operator. And in this -- of good faith to correct a cited condition, or the effect of the operator's ability to continue in business. We agree that the union is convinced that efforts to create a structure that includes proper assignment of MSHA regulations will be detrimentally impacted by the application of these factors in the civil penalty scheme for the following reasons. A. Consideration with regard to operator size in determining penalty amounts are flawed and create unfair bias in the system. In practice, from the lower fines for operators based on the size of the mine for a mining company reinforces the idea that poor practices and less-than-adequate compliance are acceptable for the small operators. This enforcement scheme indicates that smaller operators who are not responsible to abide by the letter of the law, and therefore can subject themselves to a lesser degree in safety, or they cannot be expected to understand the penalty requirements others in the mining community must follow. This dual enforcement must be stopped, and all operators must be required to abide by all regulations, or suffer the same initial penalty. B. Freedom for good faith abatement efforts offer a deterrent to compliance. The operator's focus with regard to regulatory compliance must be proactive in design. Offering a reward for correcting a condition that is in violation of a regulation, and therefore should not have existed, is ineffective. The union believes that the initial fine should be firm, and no reduction should be offered with regard to abatement efforts. MSHA should not be in the business of determining if penalties assessed will result in a loss of business or a default of the business in violation. This is most true because the statements of business survivability do not lend themselves to adequate enforcement. In fact, the opposite will only be true. Secondly, there must also be some realization that an accounting practice can make a financially healthy operation or company look otherwise. The union believes that these changes in the current proposed regulations are administered in order to enforce the Mine Act and regulations in an even-handed and compliance-driving manner. The union would also point out that the agency has the ability, as it has demonstrated in the past, to alter the statutory requirements of the Mine Act to eliminate the criteria listed above. While the union does not advocate such a practice in most cases and reiterates its objection to the use of -- air, alternative seals and --substantially different from others MSHA has approved. Unlike the others described to us with stringent enforcement and offer a great degree of protection to miners. The union supports the portions of the proposed regulation that reformulates and increases the numbers of points assigned with regards to violations. However, based on the union's proposal to eliminate some of the criteria to be considered in assessing penalties, the agency will need to reevaluate the proposal to reflect this new criteria. The union believes the end result of such review would demand higher culpable penalties to be assessed, without reductions or other factors, mitigating circumstances. The agency notes that 69,078 of 116,731 citations issued -- I'm sorry, 116,731 citations issued in 2005 were single-penalty assessments. MSHA's proposal to eliminate the single-penalty assessment provision indicating that doing so will increase the amount of fines the operator is required to pay for violations. We aren't able to determine, based on the text of the proposal, how this is possible contrary to the agency's assertion. Throughout the proposal many changes were made to clarify the rule and make it reader-friendly. That is not the case of this issue. In the preamble MSHA has reevaluated the single-penalty provision, and believes the proposed rule takes a more appropriate and effective approach to achieving the Congressional purpose with respect to single penalties. The union's concerned that MSHA has issued a statement on belief, rather than a statement of fact. The union requests that the agency provide the data used to make such a determination. The union would request a thorough explanation as to how the proposal to eliminate the single assessment will increase the amount of penalties, or that will be essentially able to demonstrate how it's changed miner safety. The agency is proposing to remove the limit of the top violations, that MSHA will review for possible special assessment by moving the list of specific categories. They also state that MSHA has the discretion to waive the regularly assessed formula if it determines that conditions warrant special assessment for any type of violation. At first blush this would indicate the agency has the desire to evaluate more violations, based on the conditions discovered per special assessment. However, the following statement contradicts MSHA's assertions. It states, "The existing list of eight categories, although not intended to be exclusive, resulted in a time-consuming and resource-intensive process." Since the agency offers to lend its support to this allegation that the process is burdensome, the union is being asked to accept MSHA's determinations without question. It is not willing to make such an accommodation. It is clear that this process is taking too much time and wasting resources, if clearly you are seeking to eliminate the burden of reviewing pure violations for special assessment. This action, in light of the stated reasons for updating the penalty assessment, is unacceptable. The union would agree on eliminating the categories for special assessment only if there are assurances that the numbers considered for such actions do not increase, as is alluded to in the proposal. The MINER Act of 2006 requires prompt notification within 15 minutes from the mine operation through MSHA in the event of a death or an injury or an entrapment that has a reasonable potential to cause death. The Act permits a penalty of not less than $5,000 nor greater than $60,000 for failure to notify. This notification is critical to initiating resource and recovery efforts. While the agency has probed the regulation language adopted by Congress, it is important to understand that the non- or late notification of such an event was meant as a deterrent. The union understood Congress to be seeking a maximum penalty of $60,000 when notifying, when notification does not occur as prescribed. Therefore, it must be understood that the only extreme circumstances should be considered mitigating factors; and therefore, lower the penalty in this case only. The agency intends to use the size of the controlling entity when assessing the penalty. Obviously, the larger the parent company, the larger the fine to be assessed. The union established owner entity information can be useful in many instances. However, it is clear that this information is difficult to verify and track to assure accuracy. There is also concern that the quickly changing nature of the industry would create a paper chase that is almost impossible to keep up with. The union is interested in hearing MSHA entities on how this information will be collected initially, and what efforts will be used to assure accurate, up-to-date data. The union is not ruling out the potential use for this, but needs additional information. MSHA's proposed rule states that the proposed size schedule will result in penalties that are, on average, more than twice the size of the smallest one to five employees in coal mines, that metal and nonmetal assume a size four times higher at coal mines in the prior-to-1940s size range -- The decision by MSHA to propose a penalty assessment scheme that works differently in violation of metal/nonmetal mines -- in this case, coal mines -- is incorrect. Miners who have worked at mines other than coal should not be subjected to a regulation that applies a lesser incentive for the operation to comply. The 1969 Coal Mine Act was admitted in 1977 to protect all miners, no matter resource was being extracted. The agency must apply the new higher penalties equally to all industries. The proposed regulation phase consistent in the Mine Act's requirement to consider size of the operation when assessing penalties. MSHA believes penalties that are assessed under the existing regs are often too low to be an effective deterrent for non-compliance at some of the larger operations. The union agrees with the premise of this statement, enforced compliance, and supports issuing penalties that are significantly greater. That is currently the case. However, to tie this increase in penalties to large operations is inappropriate. The agency has been aware for some time of the unique health and safety problems that inherently plague the small operators. The union is convinced that any operator that uses small mine size, and therefore less resources, to ensure compliance as an excuse to either avoid the application of the Mine Act or pay a lesser penalty should not be permitted to remain in operation. Miners of all mines, regardless of size, must be required to comply with the law. No one should be permitted to opt out or be assessed a lower penalty for non-compliance. The agency created the Small Mine Divisions within its internal structure because of the higher rates of non-compliance. Increased action placed a greater number of fatal accidents at peak operation in proportion to the overall work force. The penalty scheme must take these issues into account. The Congressional mandate to take the size of the operation into account has been in place for many years. The data obtained during that time should indicate these smaller operations need greater attention than do others. Enforcement and penalties must be proportionate to the accidents and injuries and violations, and attributable to the portion of the industry that exposes workers to the greatest risk. The agency has the ability to view mine size in a unique way according to the Mine Act. The agency has been doing it backwards for too long. The practice of looking at a mine operator's violation history is an appropriate means for determining their commitment to comply with the law. The determination to use such data to increase penalties for repeat violations is also appropriate. However the decision changed, and time -- from 24 months to 15 months is not correct. The union sees no benefit from the change that MSHA has offered, and MSHA has offered no information to support this decision. And we'd request the agency make this data it used to make this determination public, so we can review it. Until such a review is conducted and the data is either confirmed or refused, MSHA claims, no change is warranted. The agency also reasserts its policy of assigning field enforcement to citations based on the number of assessed violations per inspection data. The union endorses this concept in theory. However, there must be an even-handed inspection policy for it to work properly. The concept as outlined by the agency to automatically exempt small operators is a dangerous approach to enforcement. -- citations of a mine, regardless of the mine size, should take the same number of --, in particular that mine that offered the same basic equipment at two separate mining operations, and with 10 employees and the other with four employees, it should take about the same number of days to complete the investigation. I understand that a larger operation will take longer to inspect in total than the smaller, but the time spent at each should be proportionate. And I thank you. MS. SILVEY: Thank you. Before you leave there are a few comments that I want to make, Mr. Horton. First of all, on the special assessment. We have gotten comments from both the industry and the labor sectors on this special assessment, on the proposal on special assessment, and our proposal to do away with the categories that are listed in the existing rules for special assessment. And you accurately read, Mr. Horton, in your testimony exactly why the agency did that. And the why was that we felt by so doing, we would divert more by enforcement resources to doing field enforcement activities. It's funny, we got comments from both sectors which said that we should keep those categories for special assessment. All of those eight categories that were in there, we felt like in each case we had, the field people had to -- you said we provided no supporting figure. But in those eight cases that were listed for review, we felt like the district people had to keep so much information on citations violations with respect to those eight categories. And sometimes that resulted in special assessments, a lot of times it didn't. And so we felt if we just gave MSHA the authority to special assess without listing those categories, that would be a more effective and efficient way of processing the system. Now, you know, and I hope that we sort of articulated that to you. But we've gotten comments from both the labor and the industry side that says we should keep those eight categories that we have included in the special assessment. But we issued this proposal to try to create a more effective system. The second thing on your comment on controlling entity. I would submit to you that we kept the points for controlling entity in the proposal the same. We increased the weight that would be given to a controlling entity. But by so doing, I think I would submit to you, and agree with you in part in your comments on that, that sometimes getting data on controlling entities is difficult to do. And that's one of the reasons why we give more weight to the mine ownership to date than to the controlling entity. Because oftentimes getting the data on the controlling entity, sometimes it can be difficult to do. Did you want to talk back to 24 specifically? MR. WATSON: Well, maybe comment. You know, when we decided to switch to the 15-month or proposed the 15-month -- MS. SILVEY: From the 24. MR. WATSON: -- we did analyze the data for 24 months. We also included an 18-month period and a 15-month period. And basically, we determined that the 15-month period provided us with adequate information to make the determinations of history and repeat violations. So we may not have explained that as completely as we should have in the writeup, but we did make those analyses and comparisons. MR. MONTALI: Just to add on what Keith spoke about, we felt that using the 15-month would give us an accurate picture of that mine status, and a compliance. Whereby if the mine was issued more citations during that period of time, it would show that they would have a higher assessment. And also, on the other side of the table, if that mine received higher citations during the, you know, previous two years, but they basically cleaned up their act and they received less citations, that would indicate that for that mine also, they're making big improvements towards the safety of miners. And therefore, you know, the VPID, violations per inspection date, would reflect that. MR. HORTON: May I ask, though, once they have stepped up to the plate and began making their conditions better, does that not take them out of the special assessment category seven months sooner? Is that also a thought, in re 24 months versus 15? And then they're back in good standing again? Is that also the case? MR. MONTALI: Well, the special assessments is actually different on that, because each special assessments actually goes through the penalty process on its own merit. MS. SILVEY: It's different. The special assessment process is different. That doesn't have anything to do with the special assessments. That's a general -- MR. HORTON: That's what's known as -- MS. SILVEY: Yes, sir. MR. CROCCO: Hey, Roger? Before you go, I think one time on the mine size you said that the point scale was backwards. Were you suggesting that the most points ought to go to the smallest operators, and the fewest to the large? MR. HORTON: Well, a lot of our small operators -- and there have been many, many instances where they have been fly-by-night operators -- will not comply with the law no matter what you do. So to take a look at it in that aspect, I think you should do that, in all respects. You know, they're here today, gone tomorrow. MR. CROCCO: Okay. MR. HORTON: Those who have a history of complying with the Act and complying with the law should be given the greatest benefit. Those who don't are normally those who are the small operations who just want to make a buck and run away from it. MR. MONTALI: I have one other comment regarding the statement you said, well, how will the inspectors carry out their duties, and you say they can't complete their inspections now. Well, Coal Mine Health and Safety has historically completed the high nineties -- 98, 99 percent -- of their required inspections, you know, each year. And also to address this is, you know, Coal Mine Health and Safety is also in the process of hiring a number of new inspectors, you know, this coming year to ensure that we can complete the inspections at all the mines. MR. HORTON: That's good information. You see, the district that MSHA represents our area, we have a large amount of inspectors who are relatively old, and they're about to retire and move out. And I'm not seeing the young ones being brought in. They made a little movement here recently, but not enough, I think, to comply with the actual -- MR. STONE: Just to add one point to amplify what the panel said to you about that -- The logic for treating some of the structural penalties as, special assessments as regular assessments is because I believe, under this new structure, that regular assessment will be able to give an accurate reflection of the amount of the penalty, so we don't have to go to a special assessment. It ends up, from our estimation looking at 2005 penalties that were special assessments, that those that became regulars for those penalties alone -- there were about 2500 of them that had become regulars, regular assessments. With those, the penalty as a regular would be 84 percent higher, on average, than those penalties that had been treated under special assessments. So it's not that going from special assessment to regular assessment will decrease; it will increase it. MR. HORTON: It's difficult to understand. MR. STONE: Okay. MS. SILVEY: If anybody wishes to talk to us after the hearing, you know, however long it takes for more information or explanatory information, feel free to come up to me and let me know. Next we will have Deborah Hammer, United Mine Workers, Sago families. MS. HAMMER: Thank you. MS. SILVEY: Thank you. MS. HAMMER: I'd just like to clarify, I'm an associate member of the UMWA, and I lost my husband in the Sago disaster on January 2. MS. SILVEY: We're sorry. MS. HAMMER: Thank you. I just want you to know I don't come as an expert to speak to you today. I just, I don't understand all these proposed rules. I just come today to speak to you on a personal level, as a widow that gave the ultimate: my husband. To me, this all should be simple. Better enforcement, better regulations to ensure the safety of our miners. Our miners should be able to go to work and expect to come home after that day's work. And they depend on MSHA to ensure that they can do this. MSHA should be in the business of protecting our miners' safety and health, and not be responsible for making sure a company stays in business. The fines, to me, should not be reduced according to the size of a business. And by the same token, fines for similar violations, no matter the size, should be the same. These fines should also be fitting, the fines must be fitting to the violation, and fixing the problem should be cheaper than paying the fines. And operators that are habitual abusers should have the fear of being shut down. The size of the mine should not be considered as a factor in the inspections. Inspections should be based on the sections, the equipment, and not the employees at the mines. You know, I had no idea ICG was a habitual violator until after the disaster, and I reviewed their violation records. To me, there was no justice in the amount of the fines that they were charged, or that Sago wasn't shut down. I don't understand how a company can kill 12 miners, and then go on and still win a safety award. On January 15 of this year, the day that the memorial service for the miners was held in Buchanan, I had a chance to meet Wanda Blevins. She's the widow of David Blevins that was killed in the Jim Walters Mine explosion in 2001, in Alabama. And at that time she handed me a UMWA report of that disaster, with recommendations to MSHA. I read these recommendations, and it became apparent to me that had those regulations been implemented, Sago may not have occurred. My fear is that if MSHA doesn't do their job and hold operators accountable, who's going to be next in line for a Sago disaster? Thank you. MS. SILVEY: Thank you, Mrs. Hammer. I would like to say that, before you leave, that on behalf of my panel and me, and all of MSHA, again we express our condolences to you. I'm sure we've done so in the past, and not only on behalf of the miners who died at Sago, at Alma and Darby, but all of the miners who died this year, and all of the miners who died from the beginning working in this nation's mines. So we want you to know you have our deepest sympathy. And we appreciate your courage in coming here and testifying. MS. HAMMER: Thank you. MS. SILVEY: Thank you. Our next witness is Sara Bailey, UMWA Sago Family. MS. BAILEY: My name is Sara Bailey, and my dad is George, Jr., Hammer, one of the miners killed on January 2 at the Sago Mine. I would like to say that it is disheartening for me to see MSHA is still not working diligently to ensure penalties are developed that force coal operators to comply with safety laws, and deter them from violating laws, especially following one of the deadliest years in coal mining history. No one should have to die, or worry about dying, at work because a company repeatedly violates safety laws. This system is biased, based on the operator's size. Fines should be firm, and no reduction should be offered. Otherwise they do not serve as sufficient deterrents. MSHA may need to consider going back to the drawing table to formulate penalties that will serve as real deterrents, and will encourage operators to correct current problems. The Jim Walter Mine in Alabama was fined $350,000 following the investigation on the September 2001 disaster. The fine was then reduced to $3,000, and then later it was thrown out by a judge. And the reason for that was the judge stated that MSHA's work was shoddy. What can you do to ensure us this will not be the final result after the Sago investigation is completed? MSHA was developed to ensure the safety of our nation's coal miners, and not to set penalties that favor the industry. The MINER Act of 2006 requires prompt notification within 15 minutes from the operator to MSHA, in the event that there is a death, or an injury, or entrapment that could cause death. The penalty for not complying with the notification rule is between $5,000 and $60,000. The notification is critical to initiating rescue and recovery efforts. A fine for violation of the notification requirement should not be lowered. And Sago, ICG did not notify MSHA for 90 minutes after the explosion. The rescue teams were not able to arrive at the site for approximately two hours after that. By the time the rescue team members were ready to enter the mine, the level of methane had risen to amounts that prevented them from doing this. MSHA needs to propose more stringent penalties for operators who violate safety laws. No matter how harsh these penalties are viewed by coal operators, nothing is more harsh than paying with your life. Coal operators who continually violate safety laws should be shut down. ICG was a habitual violator of safety laws. If their operations were shut down for non-compliance, I ask you, would the explosion on January 2 that took my dad and the other good men's lives that day have occurred at all? MS. SILVEY: Thank you, Ms. Bailey. Again, we want to express, on behalf of MSHA and the panel, to you, Ms. Bailey, we express our condolences to you for the loss of your father. And we understand how painful that must be for you. And it was with a goal of improved health and safety in mines that we issued this proposal. And it is with that same goal that we are taking the comment and testimony today. And I want everybody to know here that with respect to our purpose, we take our purpose very seriously. And every day we take the goal of assuring that every miner comes home from work, comes home safe to his or her family. We take that very seriously. And again to Ms. Bailey, I want to reiterate our sympathy and our condolences to you. Next on our speaker we have J. R. Patsey, UMWA. MR. PATSEY: I'm glad to have the opportunity to come here today and express my opinions over these new proposals. I've looked at it. It's very complicated for me to really understand. And I don't know if you all have this where their attorneys draw this up, but it's really complicated for me to just read it and see what it means. You said you was talking about doing away with single assessments, you know. Why couldn't you put something in here to explain exactly the intentions on the, you know, on how it is going to flow on down, as you said a while ago. Because I've read, I don't see it, where you're getting the assumption that's the way it's going to be. It's just like you've heard from two young ladies here that's lost loved ones. And it was purely due to the lack of enforcement, any way you want to cut it, on MSHA's part. You know, it's hard to look at them young ladies when you see that somebody didn't do their job. It was the mine operator, for sure. I don't know how many inspections MSHA made there. You know, somebody should have seen something. The same way when we get down to Alabama, the miners that lost their life down there. History of repeated violations, known recorded, was fined tremendous amounts of money. And then they go to court, and it's just practically nothing, $3,000 or something like that. Like I said, I can't really get the full understanding of this. And I'm just going to say a few more things, then I'm going to go. Roger said a lot of what I was going to touch on. But on this, you know, I heard what you said a while ago, but I'm still a little bit confused. But anyhow, on considerations with the size of, you know, the operators. To me, you know, the law is the law, whether you got 10 people or 300 people, you know. If that's what the law says, then it ought to be applied even across the board. I've got 10 people here, it don't apply to me. I've only got to pay this amount. It ought to be an equal playing field for everybody, not just because you got the least people. And another one here, good faith abatements. I've never heard of such. I mean, it's no different from me going down the highway getting a speeding ticket. I can tell the officer well, the speed limit's 35; I was just doing 42. You know, it's a violation of the law. I knew what the speed limit was, sort of like operators. So how can you reward somebody who knowingly violated the law, and give them good faith efforts on abatement? I just don't see it. I'm going to just leave it at that right there. MS. SILVEY: Thank you. Our next witness is Clyde Childress, UMWA. MR. CHILDRESS: My name is Clyde Childress, I'm with Baer Technologies. I'm a UMWA representative. I just have a statement and one question. Single assessment of penalties should not be removed, nor should the assessment be changed from one type of mine to another. Single-assessment penalty is a great tool for training of our youth and young miners. As the inspector cites the companies, and it's posted for each to review, this helps the young miners to understand the law. Some companies have outside safety coordinators instead of a safety director on site. Therefore, the young miner never gets the chance to have the first-hand experience of how an inspector conducts the inspection, and what he looks for and the type of violations. And the thing of the 10 to five days. A lot of small companies which I worked for have ofttimes escaped it. In this type of schedule, it will not allow enough turn-around time from the time you work, to the time off, to the time you're back. If an inspector finds an unsafe condition where someone is in danger of being injured, it should not make any difference whether it's a large company, small company, metal, non-metal. Safety should always come first. And my question to you is, why is it necessary to change the rules that we already have? MS. SILVEY: As I stated in the opening statement, MSHA, we proposed changes to these rules to increase the civil penalties, to improve the civil penalty process, and to implement the civil penalty provisions, three provisions of the MINER Act. And by so doing, we believe that we, this proposal would create a more effective inducement for mine operators to comply with the mine safety and health laws and regulations, and to improve the safety and health of miners. And so the bottom line, cut through all of that, under this proposal the civil penalties will be an increased an average, in excess of an average of over 200 percent, give or take different categories of the analysis laid out, the categories of penalties, based on various operators and contractors and that type of thing. But basically, that was MSHA's overall purpose in proposing and issuing the proposal. MR. CHILDRESS: When you say you believe these proposals will do all this, before you make changes you should say I know these proposals will do this, instead of believe. Believing will get me either the carrot and the stick, or the stick and the carrot, either way you want to look at it. MS. SILVEY: Well, it was a belief based on pretty much a qualitative assessment, as I have said. I think it was a pretty fair, a pretty strong belief. It was just, as I said earlier, it wasn't that we had quantitative data, per se, to back up everything. But it was a pretty strong assessment that the increased penalties would lead to greater, a greater inducement for safety and health. MR. CHILDRESS: If this is implemented, then we do have increased penalties. How long do you think it will take before you know whether it's effective or not? MS. SILVEY: Well, we would hope to know within some months, I would hope. At least within a six-month time span, or something like that. I think it would take some short period of time. But I think we would hope to know fairly soon. Thank you. Tim Baker, United Mine Workers of America. MR. BAKER: My name is Tim Baker, that's B-A-K-E-R. I'm the Deputy Administrator for Occupational Health and Safety for the United Mine Workers. And we've heard an awful lot of comments, and some I will review and try to get into some specific details on. Others I think the panel understands as to themselves, and you've heard the comments of a lot of the miners. I would like to say first of all that, while I don't claim to be an expert on regulation or writing of regulation, generally speaking, I do have the ability to understand most of the regulations that MSHA does propose. Whether I agree with them or not is another thing. My problem with this particular proposal is it is extremely confusing. I know there are several areas or several times that the agency has reiterated that, you know, you changed this to clarify, you changed this to make it more reader-friendly. Quite frankly, that is not the case. It is confusing, and it appears -- and the preamble is very important, and I think we all know that, because that's where we pull a lot of information. It appears just to jump from area to area, and I had a hard time piecing this together. I think I have a better understanding of the single assessment. And while I will say I have a better understanding, I'm also saying, as I have told mine operators when we meet, those fines are not stiff enough to act as a deterrent. And if I may give an example. If I have an individual or an operator who runs a mine of any size, and it doesn't matter for the purposes of this exercise, but they had tires on their vehicles that are no longer in compliance and should be taken out of service. But they choose not to do that. And an MSHA inspector shows up on property and issues a citation for $174, and gives them 10 days to obey. The incentive really isn't there to look at the situation and say gee, do I pay the penalty of $174, or do I change the tire with a $20,000 tire? Now, I'm not suggesting that you fine them $20,000 for the tire, but I'm suggesting that that machine shouldn't move. That machine should not move until that is repaired. I think that the agency has missed an important element of the discussions that occurred. And maybe that's not the agency's fault, because you weren't necessarily part of some of those discussions. But they have missed the opportunity when assessing the situation to look at the operator and say you can no longer operate this piece of equipment, this particular section. I realize that we just found the violation, but you're not going to run. You're not going to run until it's fixed. There's no, you know, you don't get 10 days or five days or three days to obey; the condition warrants immediate correction, and it has not occurred. Often enough you had the opportunity in this regulation to make that happen. Unfortunately, the agency didn't seek to do that. And I would suggest that that has got to be a major element of the new system, scheme, or however you want to phrase this. Another thing that I think I need to elaborate on is, because there's some discussion here about what's statutory and what's regulatory. It is specifics with the six criteria that were used to determine mitigating circumstance, or a lesser penalty, because that's what it amounts to when we talk about small mines and those kind of things. The union does not very often -- as a matter of fact, I don't know that I've ever sat on a panel that said we would request that you change the statutory language of the Mine Act. However, the agency has in the past sought to do that, and done that successfully, when, in out opinion, it benefitted mine operators. And that's the use of belt air, that's the use of alternative fuel material, that is other issues that in our opinion aided production. Did not benefit safety, but aided production. We would suggest that changing the criteria to eliminate any consideration because of the size of the mine operator. And we've got to be careful when we talk about size of the mine operator, because Mom and Pop are really hard to find out there. Mom and Pop now consist of a mine of five people to 20 people, in the opinion of the agency, but that doesn't necessarily take into consideration how large that entity really is. Is it a contract mine for a large company? Those kind of things need to be taken into consideration in the overall picture. Controlling entity may be one way to do it, but I suggest that's a paper chase. So when you look at the criterion, some of these things should go away. The ability for the operator to stay in business is a contention that we have looked at, or is an issue that we have looked at, and we have argued over these points many, many times. If an operator cannot, despite size, offer a basic level of protection that is contained in the Mine Act and in the regulation, that operator has no business being in the mining business. The safety of the individual miner, because of size, because of ability to stay in the industry, should not be lesser than someone else, simply because it's small. Simply because they can make the argument. And I would suggest to you, with all the objections raised by industry about increasing fines, and I know Keith, you said there were only about a dozen or two that had requested that's going to change. That's going to change. And I would suggest that that should be taken off the table. We don't need to look at that particular issue any longer. And just to comment on some of the folks that were here earlier and made their comments. I don't necessarily look at the penalty system to be punitive in and of itself. You know, it is like J. R. Patsey said, if you go down the road speeding, it doesn't matter if I'm a millionaire or if I make $20,000 a year, my fine is my fine. And you can always say well, you know, the police officer was real punitive when he issued it, but the fact of the matter is you violated the law. So I don't necessarily look at it as punitive, but I don't think that operators should be permitted to look at it as simply the cost of doing business. What's expedient here? Do I just pay the fine and continue on because I can roll it into the cost? And if that's the case, then, first of all, it's punitive, and secondly, it's not effective. If that's all it is. So we need to revisit those issues. Some of the other comments that I do have. I think it was one of the other members who was up here who went through a long list of what they saw as problems, so I won't go into all of that, or reiterate what they said. But there's got to be an understanding that the penalty is assessed because of the violation because you didn't comply. The 10-percent discount, although it was 30 percent before and we realize that needs to go away, it is like a speeding ticket. Whether I go to court or whether I don't, just because I show up doesn't mean somebody gives me a break and says well, you get to pay less because you're here. So that needs to go away. It's not an incentive to do the right thing, it really isn't. I mean, the violation should not have existed. If the operator reasonably should have known about it, the violation should have been corrected before an MSHA inspector ever showed up on site. Another point of concern is when we talk about -- and I'm not exactly sure how this works, but when we talk about violations per inspection shift. There is a realization out there that some mines get a lot more attention than others; and that despite the fact that in a particular section in a mine that has one mine and two shuttle cars, and a scoop, and a bolter, that in some mines it takes eight or 10 shifts to inspect that particular operation. Where across the street, it takes a day or two. There's got to be some understanding that if we're all running the same equipment, generally speaking, we're doing electrical inspection, it should take about the same time. So despite size, we should have the same number of shifts spent in each mine. Understanding that if I've got a five-unit mine, I'm going to have a lot more air courses to run in those outlying areas. And conditions may warrant from time to time that additional shifts are spent there. But by and large, there should be some proportional understanding that you get the same kind of treatment. And I don't believe that that is the case at this point. And that needs to be looked at. Because under this proposal, inspections or violations for inspection shifts are going to be very important. So we need to look at how those things apply. As far as the one commenter saying that, you know, if you fine somebody and you allow them to put at least some of that money back into repairs, I would suggest if you put the money into repairs to begin with, you wouldn't have the violation. So the argument, I guess, I can turn around and make look differently. And you know, I'm as good as anybody about saying how taking the five-dollar fine and making it $45,000 or in reverse, which is what I normally do. But I am unaware of a taillight being out, or some miner is in this condition where the agency has been so abusive that, you know, you fine them $17,000 or $18,000 or $20,000. I don't find that to be the case. I'd be interested in seeing those. We are concerned about going from 24 months to 15 months on the history, especially now that histories play a different kind of role, at least if I'm reading this correctly. But also if I'm reading this correctly, there are some aspects to this that small operators get out of. And we will meet after this, I hope, so that I can get a better understanding. But there are some aspects of the regulation, and it's in the preamble, that says you don't intend to enforce this on small operators. I need to know exactly what those are. I need to know exactly what those are, because I don't think there's anything that should be exempt for anybody. And we can pull it out after. MS. SILVEY: Yes, because I just want to clarify, you know, I'm glad you made that point. That the rule, the penalties will be assessed equally against small and large operators. I say "equally;" I mean the final penalty, they will get a final penalty assessment. In computing that assessment, I think there was some conversation in the preamble about size. And operators under a certain size -- it was 15,000 tons a year in the previous calendar year for coal mines, 10,000 hours in the previous calendar for metal/non-metal mines, and 10,000 hours for contractors at all mines -- got no points for size. And so that was the only thing. But if you recall, that point table included five criteria. They just got no points for size, but for negligence and gravity and history and -- what's the fourth, good faith -- and good faith, they would get consideration for that. But it's just that it was no points for size. But we are hearing from people that, you know, that we should maybe relook at that. And that was, by the way, let me just say to everybody, that was no change from the existing rule. That's the way it is in the existing rule, by the way. Have I got that right? Tell me if I'm wrong. MR. BAKER: You're right. MS. SILVEY: Okay. MR. BAKER: And you know, there are some of those issues that really need to be fleshed out, because it is in some instances very confusing. Like I say, I'm getting the grasp on single sample, or single assessment. MS. SILVEY: Single sample? MR. BAKER: No, that's the next rule. I'm sorry. But a couple other things. We are looking at, and I noticed somebody saying, you know, there's a problem completing inspections, and there is that problem out there and they're hiring new inspectors. But possibly not fast enough, probably not in the numbers that need to be. And to be quite honest with you, if it hadn't been for Senator Byrd forcing the issue through the DOL, I doubt that anybody would be hired at this point. You know, just so we can lay all these things on the table and look at them kind of objectively. So we need to hasten this process along, because there are a lot of inspectors who've done a lot of good work over a lot of years, and it is time for them to leave. And I hope they have long and happy retirements, but they're going to be going. So the 200 that are projected to be hired over the course of the next year or so may not be sufficient to fill the gaps of those who are leaving. Your work force at MSHA is no different than our work force in the mines. A lot of people are getting ready to leave. So we need to look at that beyond just this year. I believe that will be an important issue in whatever we come to in this final rule, and however we put these things together. The other thing is we would ask for some more specific data. And I know that I sit here and say the union believes this, we believe that. But a lot of this rule tells me what you believe. And I know you said you've got quantitative data on certain things; you know, the 15 months to the 24. But I didn't have the chance to look at that data. What you're looking at, why it's the same. And so on those areas where you believe, you know, you believe the proposal will enhance compliance or force compliance, I'm not so sure I see that. What I see is what I said before, is I see operators saying I can't afford this. The little ones get away, and the big ones pay, and that's not the system that we need to look at. I guess, in closing, what I'm trying to say is basically what many of the members of the Mine Workers, including myself, have tried to reiterate: There needs to be a balance here. MSHA didn't create the Small Mines Division because they didn't recognize there was a problem with small mines. MSHA didn't have the tri-state initiative because they didn't realize that small mines in tri-state Kentucky, West Virginia in that area, and Virginia didn't have a problem. That's what those were about. Those are, in some instances -- not always, but in some instances -- problem children. They need compliance in many instances much more than the larger operators. Now, that needs to be looked at. And if somebody mentioned before, they said, are you suggesting we find them harder? If they can't comply, you fine them as hard as you can. No consideration, no special carrots. You fine them as hard as they can. And if they stay in business, they stay in business. Because quite frankly, if they can't afford to pay the fine, they can't afford to operate safely. We need to look at those issues. I've never been shy, whether it's in open meetings or whether it's for the operators telling them I don't mind spending their money on new equipment or fines. It doesn't matter to me, I'll spend their money, it's easy for me. But that goes for small operators, too. They need to be held to exactly and precisely the same standard. And we would hope that we would be able to accomplish that through this rule. Finally, collection of penalties. You missed the opportunity. There are operators out there, and you know, I used to go to the anthracite region on a frequent basis. And I'm not sure they understand why we inspectors give them a piece of paper, because most of them don't pay anyhow. You know, they tack it up on the bulletin board, and that's the end of it. We have some operators in Kentucky that I know you initiated a lawsuit against at least one. But in this rule you had the ability to put some teeth in it and say if after the assessments are final, and after we have gone through the process, if you don't pay your bill, you don't run coal. Or you don't run whatever product you're producing. Now, that can be done in many ways. You can simply say you're not going to run any more, or you can say you don't have a ground control plan that's approved any more, you don't have a ventilation plan. However you want to do it is fine with me. But there's got to be some way to say the operators who basically thumb their nose after the process is done, you get that money. That's what they understand. I've made that argument on many, many different rules. That's what they understand. If they're not in your pocket, they don't care if you're there. That's unfortunate, but that's reality. You know, in many instances the only thing that keeps us from being in 1940 again is the 1977 Mine Act. And that's the reality. And I'll be happy to take any questions or try to give another shot here or there if I can. MS. SILVEY: I don't have any questions. I have one comment. In your comment, one of your earlier members had said so, too, when we ask for information on the controlling entity. And one of your earlier members had said that might be difficult to do to get information. And you called it like a paper chase. And the only thing I wanted to ask you was, do you envision or see any alternative as another way of getting at getting more information on controlling entities? You mentioned a mom-and-pop contractor for A&M Coal Company -- I'm making up the coal company -- but I think we agree with that, that that is sort of like difficult to get some of that information on controlling entities. And if you found another way that we might get that information on controlling entities. MR. BAKER: And for a lot of different uses we attempt, in the union, to collect that information. That is extremely difficult information to -- and especially with the nature of the industry right now, because there are mergers and there are spin-offs. And so those things become difficult. MS. SILVEY: Right. MR. BAKER: And I think you work from both ends. And I'm not sure what the answer is. I will certainly talk to some of the folks in our contract department. They have a lot more experience. MS. SILVEY: Yes. And the other thing, on connections. We have, how should I say it? Keith can say it better than I can say it. We have been very active, for lack of a better word, in the collection department with respect to forwarding the civil penalties that are over 180 days, in accordance with the Debt Control Improvement Act, DCIA, and forwarding that to the Treasurer. And then we forward it to the Treasury, and the Treasury will take over then. But we have been, if I'm not mistaken, very active, and have been successful in getting a lot of it over to Treasury. MR. BAKER: And I understand that. I understand that. I come from the perspective of once you get it over to the Treasury, that doesn't necessarily mean they're going to pay the bill. Because, you know, as you go through the process -- MS. SILVEY: That's true, that's true. MR. BAKER: -- you see delinquencies on the whole thing. MS. SILVEY: That's right, that's right. MR. BAKER: So the question becomes is there not the ability -- and I believe there is. I believe that there is a real tough mandate set out from Congress saying there's something wrong here, and we need to reevaluate a whole lot of things, including penalties and assessments and all those things. And I think there is the ability here based on that to have the agency say to Treasury then, okay, if you're unable to collect after a certain period of time, we need to be notified. Because we're going back to the operator and saying the ballgame's over. You don't want to pay your bills, that's not a problem; you're not going to mine either. MS. SILVEY: Yes, I understand. MR. BAKER: So I mean, there's got to be some back-and-forth. Because as you know, if you go on the website in data retrieval, you can find delinquencies. And it's not all. It is those, it's almost like you get that 20 or 25 that really don't care, and they're just not going to pay. And that's fine. They don't have to pay if they don't want to. The agency should have the ability to say you don't have to pay, but you're not going to continue to operate. So that's pretty basic. You know, if you don't pay your bills, you're losing your house, I guarantee you that. The bank's not going to care. We should operate under kind of the same, the same mandate. And I will take some of the questions that I've heard from the panel and other things and hopefully have some answer in a couple of days in Pittsburgh. MS. SILVEY: Okay. Pittsburgh, okay. MR. BAKER: But I appreciate the opportunity. And I know I don't say this often enough, but you have a tough job, especially the guy that's supposed to sit on the panels, because you get beat up routinely. And we do appreciate the opportunity to speak. We do appreciate your willingness to listen. And we do appreciate the fact that we can disagree and continue on to the next subject, and maybe agree on those things. But we would like to see some more teeth to this. MS. SILVEY: Thank you. MR. BAKER: Thank you. MS. SILVEY: And we appreciate your coming and providing your testimony, too. Before you leave, though, I had one comment I wanted to make to Ms. Bailey. I had it written down, and then I didn't say it. And that is, with respect to -- Ms. Bailey, can you hear me? MS. BAILEY: Yes. MS. SILVEY: With respect to the Jim Walters case. Because we were discouraged by what the ALJ did in that case, too, with the reduction of the penalty. And as you may know now that the case was appealed, and the case has been remanded back to the judge, too. And I don't know exact directions that the judge gave, has been remanded back to that administrative law judge to issue, to review, to look at the citations and the penalties that were issued in that case, and to make a new finding. Is that basically it? MR. WATSON: Reevaluate. MS. SILVEY: Reevaluate. To make a reevaluation. So at least the administrative law judge who did it, they have to look at it again. So that's not saying how it's going to come out, but it's been remanded back to that administrative law judge for further evaluation. MR. BAKER: But it is my understanding that of the contributory violations, not all of them were remanded. It was only the two that were assessed for $3,000. That was my understanding. Maybe I'm correct that the other five that he threw out are gone. That's my understanding, from reading the decision. MS. SILVEY: Yes, I think it was the ones that were assessed, right. But that's still something that he's got to look back at. MR. BAKER: Sure. And I mean, it's a shame. It's a shame, because 13 miners. MS. SILVEY: Okay, thank you. MR. BAKER: Thank you. MS. SILVEY: All right. That is the persons and organizations who requested to speak. Is there anybody in the audience who wishes to speak? Anybody in the audience who wishes to speak? Well, if nobody in the audience, nobody remains who wishes to speak, then at this point, on behalf of the Labor Department, I want to express our sincere appreciation to all of those of you who came today, and who provided your comment and testimony on the agency's proposal. I also want to give our appreciation to those of you who came and just showed an interest in the proceedings, but did not provide testimony. We appreciate that, also. We appreciate your interest in mine safety and health. And I want to particularly again express our condolences to and our appreciation to the members of the Sage families who came and provided their testimony, and continue to provide input into mine safety and health. As I stated earlier, we will be in Pittsburgh on Thursday, October 19. The record will close on the 23rd. And anything that you heard today that you want to provide additional comment and testimony to us, feel free to send it to me, give it to me. And with that, the proceeding is concluded. Thank you very much. (Whereupon, at 12:13 p.m., the hearing in the above-entitled matter was concluded.) // // // // // // // // // // // // // // // // // // // // // // REPORTER'S CERTIFICATE DOCKET NO.: n/a CASE TITLE: Public Hearing on Proposed Rule HEARING DATE: October 17, 2006 LOCATION: Charleston, West Virginia I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and notes reported by me at the hearing in the above case before the Department of Labor. Date: October 17, 2006 Paul S. Intravia Official Reporter Heritage Reporting Corporation Suite 600 1220 L Street, N.W. Washington, D.C. 20005-4018