In the Matter of: ) ) PUBLIC HEARING ON PROPOSED ) RULE CRITERIA AND PROCEDURES ) FOR PROPOSED ASSESSMENT OF ) CIVIL PENALTIES ) Pages: 1 through 61 Place: Arlington, Virginia Date: September 26, 2006 U.S. DEPARTMENT OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION In the Matter of: ) ) PUBLIC HEARING ON PROPOSED ) RULE CRITERIA AND PROCEDURES ) FOR PROPOSED ASSESSMENT OF ) CIVIL PENALTIES ) Tuesday, September 26, 2006 Conference Room G, 25th Floor 1100 Wilson Boulevard Arlington, Virginia The meeting in the above-entitled matter was convened, pursuant to Notice, at 9:07 a.m. BEFORE: PATRICIA W. SILVEY Moderator PARTICIPANTS: Agency Panelists: PATRICIA W. SILVEY, Director, Office of Standards, Regulations, and Variables, MSHA JAY MATTOS, Acting Director, Assessments PETER MONTALI Office of Metal and Nonmetal Mine Safety and Health KEITH WATSON Office of Assessments ROBERT STONE Economic Analysis Division WILLIAM CROCCO Office of Coal Mine Safety and Health PARTICIPANTS (continued): Agency Panelists: JACK POWASNIK Office of the Solicitor Speakers: EDWARD H. FITCH, IV Fitch and Associates, LLC 1205 Forestville Drive Great Falls, Virginia 22066 (703) 757-0097 ADELE ABRAMS, Esquire Law Office of Adele L. Abrams, PC 4740 Corridor Place, Suite D Beltsville, Maryland 20705 (301) 595-3520 PATRICK JACOMET, Executive Director, Ohio Aggregates and Industrial Minerals Association 162 North Hamilton Road Gahanna, Ohio 43230 (614) 428-7954 P R O C E E D I N G S (9:07 a.m.) MS. SILVEY: Good morning. My name is Patricia W. Silvey. I'm the acting 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 proposed rule concerning civil penalties. The members of the panel are: to my left and the chair of the Civil Penalty Committee, Jay Mattos, who is the acting director of Assessments; to his left, Robert Stone, who is the economist from my office; to his left, William Crocco, who is from Coal Mine Safety and Health and who was coal's representative on the committee; to my right, Jack Powasnik, who is from the Labor Department Solicitor's Office and our attorney on the committee; Pete Montali, who represents Metal and Nonmetal Mine Safety and Health; to his right, Keith Watson from the Office of Assessments; and also, in the audience, Jerry Gunn, who is from my office. This is the first of six public hearings on this proposed rule. The second hearing will be held on September 28 in Birmingham, Alabama; the third hearing, October 4 in Salt Lake City, Utah; the fourth, October 6 in St. Louis; the fifth, October 17 in Charleston, West Virginia; and the final hearing will be held on October 19 in Pittsburgh. The comment period for this rule closes on October 23, and for those of you who have been following developments in mine safety this year, I know all of you are familiar with the Miner Act, and in accordance with the Miner Act, MSHA must issue regulations related to the penalty provisions of the Miner Act by December 2006. We will accept documents today that you would like to submit for the record. This hearing will be conducted in an informal manner. Formal rules of evidence will not apply. Members of the panel may question witnesses, and witnesses may question the panel. Scheduled speakers will make their presentations first, and after that, others will be allowed to speak, and from the list that I have before me now, I don't think there will be any problem with people having an opportunity to speak. The transcript of this hearing will be posted on the MSHA Web site within a week. Before I discuss the provisions of the rule, I want to give you a short overview of the civil penalty process, beginning with clarification of four terms that are used throughout the rule. The first is "citation." The inspector issues a citation for a violation of any MSHA standard, rule, order, safeguard, or regulation. The inspector sets a time to abate the condition. The second is an "order." The inspector issues an order under several different circumstances, as many of you know. When a violation is not abated within the time set by the inspector, or including any extension, when the inspector finds a violation caused by unwarrantable failure under certain conditions, when the inspector determines that an imminent danger exists, an order requires withdrawal of affected miners until the violation is abated. The order does not necessarily require that the entire mine be shut down, and it applies to the area affected by the violation. The third is "significant and substantial," or as those of us in the mining industry call it, "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 by a mine operator." Under the Mine Act, MSHA proposes penalties, and the Federal Mine Safety and Health Review Commission -- I might later refer to it as "the commission" -- assesses penalties. A proposed penalty that is not paid or contested within 30 days of receipt becomes a final order of the Commission by operation of law and is not subject to review by any court or agency. 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 that are final orders of the Commission. The Mine Act requires MSHA and the Commission to consider six criteria in assessing civil penalties: 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; the operator's good faith in abating the 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. The operator must send in supporting documentation if the operator believes that the penalty would negatively affect the company's ability to continue business. MSHA will review this information and may adjust the penalty. MSHA published a proposed rule in the Federal Register on September 8. A copy of the proposal was placed on MSHA's Web site, and a copy was sent, in accordance with federal requirements, to the Office of Advocacy at the Small Business Administration. 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've refer to as the "Miner Act." The proposal does not change the way inspectors issue citations. Under the proposal, the inspectors will make factual determinations with respect to safety and health violations and will issue citations and orders just as they do now. Also, please note that while both the Mine Act and the Miner Act contain provisions for criminal fines, this rule, as the name implies, concerns only civil penalties. Under the existing rule, MSHA has three types of assessments: single, regular, and special. I will now address the proposed changes to each type of assessment. The existing rule provides for a $60 single penalty for non-S&S violations, timely abated, and where the operator does not have an excessive history of violations. The agency proposes to delete the single penalty provision and believes that eliminating this provision will cause mine operators to focus their attention on preventing all hazardous conditions. Regular assessments are derived by the second part of the existing rule regular assessments. These are derived by assigning points for statutory criteria and then converting total points to a dollar amount. The penalty point tables are published in Section 100.3. 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 used for determining penalty amounts. The point tables would be revised so that the penalties increase proportionately to increases in operator size, history, and negligence, and the gravity or seriousness of the violation. Regular assessment changes are as follows: Size. The size criterion includes the operator size and controller size. For coal mines, the operator size is measured by tonnage of coal produced by that mine during the previous calendar year. For metal and nonmetal mines, the operator size is measured by the hours worked at the mine during the previous calendar year. Size for independent contractors is measured by the total hours worked at all mines during the previous calendar year. 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, coal mines that produce up to 15,000 tons of coal, metal/nonmetal mines with 10,000 or less hours worked, and independent contractors who have worked up to 10,000 hours at all mines. Please note that the preamble to the proposed rule states that, according to 2005 data, nearly half of the existing coal mines had annual tonnage up to 15,000 tons, and this figure included 463 surface facilities that do not produce coal. So, therefore, that sentence in the preamble should be corrected to read: "Approximately one-fourth of producing coal mines had annual tonnage up to 15,000 tons" instead of one-half. The proposal makes no changes to size points for controlling entities. In the proposal, MSHA 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 criteria: shortening the time period for determining violation history, changing independent contractor history from an annualized number to the total number of violations, adding a new component for repeat violations of the same standard, and increasing the maximum number of history points. Under both the existing rule and the proposal, only violations for which the penalty has been paid are finally adjudicated or included in determining an operator's history. Under the proposal, the time period for determining history would be shortened from 24 months to 15 months. 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 total number of violations in the previous 15 months. Since history would no longer be based on 24 months, there is no need to annualize the number of violations. MSHA believes that this change will have a de minimis effect on the average assessment issued to independent contractors. In the proposal, MSHA solicited comments on this approach to determining violation history for independent contractors; that is, whether an annualized average should continue to be used. Again, I invite you to address this issue, either here today or in your written comments. The maximum number of points for this component of violation history would be increased from 20 to 25. The proposal adds a new component to the history criteria 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. Repeat violations, under the proposal, are determined according to the manner in which the standard is cited. For example, a violation of Section 56.14101(a)(1) would not be considered a repeat violation of Section 56.14101(a)(2). MSHA solicits comments on this approach to determining repeat violations. Penalty points are assigned for the total number of repeat violations during the 15-month period, and also in the proposal, MSHA 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 in the proposal, or only S&S violations. We invite you to address these aspects of repeat violations. The new component, i.e., repeat violations, would add up to 20 penalty points. 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, with the increase placed entirely in the three highest levels. Under the proposal, penalties would increase proportionately for operators who exhibit increasingly high levels of negligence. Gravity. The proposed rule would retain the three components of gravity -- likelihood, severity, and the number of persons potentially affected -- but would increase the maximum number of penalty points that could be assigned for each component. The maximum total gravity points would go from 30 to 88. Good Faith and Abating 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 amount by 30 percent if the violation is timely abated. The proposed rule would decrease the reduction for timely abatement to 10 percent. Under the proposed rule, no penalty points would be added for violations that are not timely abated. Penalty Point Conversion Table. The dollar amounts on the existing conversion table range from $72 to the statutory maximum of $60,000. The statutory maximum corresponds to 100 penalty points, which is the sum of the maximum points for five of the six criteria. The minimum regular assessment is $60. The proposed rule provides a maximum of 208 penalty points. The revised conversion table begins with $112. Under the proposal, with a 10-percent reduction for timely abatement, the lowest penalty amount would be $100. The dollar amount of the penalty increases steadily as the number of penalty points increases. For example, beginning at 133 penalty points, each additional penalty point corresponds to an increase of $3,070. The maximum penalty of $60,000 is reached at 140 points. Although all penalties are increased, violations with the highest number of penalty points, which would generally be those that involve high negligence and gravity or greater violation history, will increase at a greater rate. Special assessments are processed where the violation is of such a nature that an appropriate penalty cannot be determined under the regular formula. The existing rule lists certain categories of violations, such as fatalities, serious injuries, and unwarrantable failure, that must be reviewed to determine if a special assessment is appropriate. The proposed rule would remove this list. However, under the proposal, 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 will permit MSHA to focus its enforcement resources on more field enforcement activities rather than on administrative-review activities. The proposed rule would shorten the time allowed to request a health and safety conference with the district manager. Under the existing rule, operators or any party has 10 days to make this request. The proposed rule will shorten this time to five days. MSHA believes the proposed reduction would result in a more effective civil penalty system because penalties would be assessed closer in time to the issuance of the citation. Finally, the proposed rule implements civil penalty provisions of the Miner Act. Although these provisions are included in the proposal, the provisions were effective on June 15, 2006. In addition, the agency has issued a procedural instruction letter to MSHA personnel containing information on procedures for processing violations consistent with the Miner Act. I will discuss each provision separately. Unwarrantable Failure Citations and Orders. As many of you know, the Miner Act established minimum penalties of $2,000 and $4,000, respectively, for unwarrantable failure citations and orders. The proposed rule includes these two provisions. Basically, what that means is that unwarrantable failures violations will receive minimum amounts consistent with the Miner Act, either through the regular assessment or special assessment provisions. Penalties for "Flagrant" Violations. The Miner Act established a new penalty of not more than $220,000 for "flagrant" violations; that is, violations 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 violations are processed as special assessments. Failure To Notify. The Miner Act establishes a penalty of not less than $5,000 and not more than $60,000 for failure to timely notify MSHA in the event of a death or injury or entrapment with reasonable potential to cause death. As stated earlier, these violations are processed as special assessments. I would ask each of you to sign the attendance sheet at the back of the room, if you have not done so, and, to reiterate, we will post the transcript of all public hearings on the Web site. It will be posted approximately one week after the completion of each hearing. The transcript will include the full text of my opening statement and the specific issues for which the agency seeks additional comment. We will now begin with the people who have called in to the agency. Please begin your presentation by clearly stating your name and organization for the reporter. First on the list, we have Edward Fitch. Could I have the list, please? (Pause.) MS. SILVEY: I probably should have mentioned that Ned is a retired Department of Labor employee. (Pause.) MR. FITCH: Good morning. Some of you already know me, and it's good to see you today. My name is Ned Fitch. I recently retired after over 30 years as a headquarters litigation attorney for MSHA and MESA. It is a pleasure to speak as an interested private citizen today on the proposed rule to raise mine safety penalties. I submit the following two observations and recommend that the proposed rule be modified accordingly. The 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. The fact of the matter is that increasing the regular civil penalties for all mine operators about 300 percent over those that were assessed in 2005 is not supported by the excellent overall compliance record of the mining industry as a whole. The enhanced focus of increasing the civil penalties on the few operators who are not trying to maintain the high level of safety compliance mandated by the Mine Act should not be adversely affecting the many mine operators who are meeting those responsibilities. While it is a simple approach, it is punishing the entire mining industry for the conduct of a few bad apples. The general increase is an unreasonable and unfair tax. It takes money away from companies which have a good compliance record, as well as from those pieces whose compliance efforts need significant improvement. One size does not fit all. Increasing the general civil penalties for responsible mine operators will not enhance their compliance. The current civil penalties have been adequate to achieve that for those operators. It is simply a new tax on the mining industry as a whole. Since January 2, 2006, the mining industry has been under intense scrutiny and impacted by new safety initiatives at both the state and federal levels. The most significant are the new requirements of the Miner Act. These new requirements have direct costs to the industry, whether in the form of additional training time for all miners, the installation of life lines, additional new SCSRs, or other material and personnel costs. A dollar spent on safety by a mine operator is better than a dollar sent to the Federal Treasury as an enhanced penalty. Mine Act civil penalties are not even earmarked for enhancing mine safety and health with additional compliance assistance where it is needed most: at the mines that are not achieving the high level of safety that is mandated by the Mine Act. Taxing the industry as a whole with this proposed general increase in civil penalties above inflation or cost-of-living levels is unsupported by the logic advanced in the proposed rule. Two. The single penalty should be revised to reflect the sizes of mine operations but not thrown out as a regulatory failure. The fact of the matter is, the single penalty works, and it is one of the Reagan administration's significant advances in the administrative functions surrounding the Mine Act. In the days before the single penalty, a significant amount of industry and agency time was spent on post-inspection negotiations on the appropriate penalty for every violation. The establishment of the single penalty significantly reduced the time and personnel dedicated to penalty issues of the less-significant violations. I suggest that the single penalty be maintained but revised to reflect the size of the mine. A small mine operation could be assessed a $50 single penalty, a mid-sized operation could be assessed $125 single penalty, and a large operation could be assessed a $275 single penalty. The actual dollar amount is not important, but a single penalty for nonserious violations allows all parties to keep the focus on the hazards that cause the accidents and the injuries in the mining industry today. The elimination of the single penalty, as proposed, will increase MSHA's and the mining industry's post-inspection conferencing time and the expense associated with the penalty process. It will increase the litigation of citations before the Federal Mine Safety and Health Review Commission, and the administrative law judges will hold de novo review of the appropriate civil penalty for each violation on a case-by-case basis. The elimination of the single penalty is essentially the equivalent of a "Mine Lawyers Employment Act," which I believe that the majority of the mining community does not think is needed. Having litigated several of the high accident assessment cases in the last 15 years, one thing is quite clear: If the mine operators believe that they have been abused by the agency and its findings, they have the resources to litigate and achieve substantive results by challenging the agency's findings before the administrative law judges and the Commission. In closing, I would like to say that the mining industry's overall safety record does not support the increased assessments that the proposed rule would likely impose on 90 percent of the industry in the hope that it will improve the conduct of the remaining 10 percent and ultimately result in achieving the goal of improving health and safety for all miners. The single penalty should be revised but not eliminated. Remember that 75,394 out of 116,731, nearly two-thirds, of the citations issued were assessed single penalties in 2005. Depending on your vantage point, no penalty is ever enough, and whatever the penalty is may seem to be too much. Finally, "yes" to improved training and planning and "no" to raising the entire industry's civil penalties and the elimination of the single penalty. Thank you very much. MS. SILVEY: Thank you. We will next have Adele Abrams from the Law Office of Adele Abrams. MS. ABRAMS: Good morning. My name is Adele Abrams, and I am president of the Law Office of Adele L. Abrams, PC, in Beltsville, Maryland. We are a 10-employee firm that focuses on MSHA and OSHA litigation, representing mine operators and contractors in proceedings before the Federal Mine Safety and Health Review Commission. We also do training, site audits, and consultation at the mine, and, as such, I do have an MSHA contractor ID number and, therefore, am subject to MSHA enforcement and penalties under the proposed rule. In addition to being an attorney, I am also a certified mine safety professional, and I am an active member of many mining and safety organizations, but my comments this morning are those of myself and are not on behalf of any of the organizations that I occasionally represent or participate in. (Discussion held off the record.) MS. ABRAMS: I will submit more detailed comments for the record electronically, and I realize the time is limited here. So I would like to hit some of the high points. First of all, as we all know, the mining industry has pervasive regulation, the most heavily regulated industry, I believe, that is out there. Moreover, because of the mandatory inspections, regardless of a mine's performance in terms of injury and illness rates, more citations are generated during these MSHA inspection years than you would have at comparable OSHA-regulated sites. Moreover, because of strict liability and limited affirmative defenses available to mine operators, many more citations are sustained than in a comparable OSHA inspection. We recognize, those of us in the industry, that, to a certain extent, MSHA's hands are tied, and many of the components of this rule are mandated under the Miner Act. In the interest of time, I'm not going to address those because MSHA had virtually little discretion in how to implement those. But the remainder of this rule, I believe, is an overreaction to the congressional scrutiny and the pressure that followed the horrifying events that occurred at the Sago mine earlier this year. The fact is, penalties do not drive safety, at least at most mines and certainly at those mines that I represent, and MSHA has offered no supporting data to show that safety performance will increase when penalties go up. The criteria that you've proposed here does look at violations per inspection day, it looks that the number of repeat violations, but nowhere in this does it factor in a mine's actual safety performance in terms of lives, in terms of injuries and illnesses. There is also a problem because of the unique structure, the bifurcation, of the citation and the penalty process. Unlike OSHA where you get a citation and a penalty at the same time, with MSHA you get the citation first and then months, or sometimes years, later, you will get the proposed penalty. And it appears, under this rule, that many, many more citations will be specially assessed, which is going to further cause a delay between the time of an inspection and the issuance of a citation and an operator actually finding out what the proposed penalty will be. Because of the unfettered potential for the special assessments, as well as the proposed repeat categorization, this is going to drive operators to have to contest virtually all citations that are issued because it is going to be a wild card. They will not know what the end result will be, and they will have a very narrow window in which to decide whether or not to retain counsel, whether to take it to the next level. This is going to increase the workload for sure on the CLRs, the conference and litigation representatives, as well as on the Solicitor's Office, and, of course, on the whole Federal Mine Safety and Health Review Commission. I am already seeing, just because of enhanced enforcement in the wake of Sago, citations that can't be conferenced for 30 or 60 days, despite very timely requests, and I do not believe that reducing the period when you can request a conference from 10 days to five days is going to have a bit of difference in this. It is not delay on the operators' part that is causing the backlog at the CLRs; it is simply the number of citations already being contested now because of the heightened penalty potential, the repeat potential, et cetera. So I think the proposed rule is going to exacerbate that situation. To say a little bit more about the reduction of the conference period, MSHA has to recognize, as a practical matter, that many companies have a centralized office that handles safety, that makes determinations on whether or not to proceed with conferencing or challenging citations, and the citations, in the first instance, are given to the mine location. It may take a good week for those to be communicated to a corporate safety officer, much less for them to confirm with their in-house or their outside counsel and make a determination whether or not to seek a conference and invest those resources. I also represent a number of contractors who do work on a national basis, and, again, the citations may be left for them at the mine office and not given to them for days later. Then they have to transfer that information to a corporate safety office. It's going to be extremely difficult for any of those companies that do centralize their safety operations to be able to get the information they need within five days to make a decision, and, effectively, what you're doing is closing the door to the conference process to a majority of these larger operations. What is that going to do? As Mr. Fitch very eloquently said, it is going to the "Mine Lawyers Employment Act." It is going to leave them no recourse but to file a notice of contest, and I think you are also going to see an increase in expedited hearing requests if this rule goes through in the manner in which it is proposed. Those are some just basic observations that I wanted to make. I do have a few comments to make on the specific proposals, and if there is time permitting, I would like to go through those now, not in as much detail as I've written down, however. First of all, on the single penalty assessment, I very much disagree with the idea of abolishing it entirely. Quite often now, that will be a criterion for companies to decide whether or not to invest the resources to hire counsel or to even conference citations. If, again, all non-S&S citations are thrown into the potential special assessment mix because you're removing all criteria for that, you're going to have no recourse but to conference every single citation and try to get the gravity reduced since, of course, if it's under a regular penalty point system, the difference between lost work days and permanently disabling is going to make quite a bit of difference. These are all subjective evaluations made by inspectors on the fly. It is rare that you're going to get two or three inspectors who would look at a gap and a guard and characterize it the same way. So there is usually some room for disagreement upon a gravity characterization once you get beyond the first finding of unlikely. Also, many of these involve things like housekeeping, small amounts of material on a walkway or dirty toilets. Do we really need to be litigating, as, indeed, one client of mine is right now, a toilet citation because a truck driver forgot to flush, and MSHA was offended by that and issued a non-S&S citation? Is this really what we need to be tying up the courts with? I don't think there would be a lot of disagreement in raising the non-S&S, single penalty assessment perhaps to $112 per citation, which is the lowest amount under your new proposed penalty criteria. I think it's worth noting that, under OSHA's somewhat analogous system, there, other than serious citations, which are comparable to the non-S&S here, often have zero penalty, and de minimis citations with OSHA have zero penalty. So I think MSHA really needs to revisit this. The proposed deletion of the single penalty is unnecessary, and where a non-S&S citation involves somewhat egregious conduct, they already have authority to specially assess non-S&S citations that are characterized as high negligence. With respect to the regular assessment criteria, there does not seem to be any logic to having more onerous burdens on small coal operators than on comparable metal/nonmetal operators, and I believe the current penalty point system addressing operator and control and company size should be continued. I do support reducing the history of violations period from the previous 24 months to the previous 15-month period, and I think this does need to be clarified that this applies only to citations and orders that have been finally adjudicated. There are significant legal and procedural problems with the repeat violation criteria, and I will speak to that in a moment. The BPID criteria achieve the goal of discouraging high rates of citations, and that should be continued in its present form, with the modification cutting it back to 15 months, and I also support including or continuing the minimum number of citations to trigger history points for small operations because many of them simply do not have sufficient inspection days to offset even six or eight citations that they might get in a 15-month period. These same criteria should also apply to contractors working at mines, and I disagree with enhancing history penalty criteria for contractors. MSHA seems to miss the point that many of these contractors operate nationwide but have a single contractor ID number, regardless of the number of mine sites that they may have active operations on on a daily basis. It is quite easy, if the contractor is working at 50-plus mines a day, for them to compile more than 50 citations in a 15-month period, especially if these are for non-S&S citations, things like missing paperwork that they just left out of their truck when they went to visit somebody else's work site. So if MSHA is going to crack down on contractors in this rule, in terms of history of violation, perhaps it should consider excluding non-S&S citations from a contractor's history of violations so that only those citations that deal with actual safety hazards are considered. Another thing that needs to be considered here is that there have been a lot of changes in ownership in the mining industry over the years, and especially in recent years, and whereas, in the past, it was not unusual for MSHA to give out a new mine ID number if a company was purchased by a totally separate entity and made significant changes in the management at the mine. In a couple of recent instances that I've been involved with, MSHA has refused to do that, and so a new company coming in that should have really a clean start with the agency is, instead, encumbered by a mine that may already be under excessive history of violations or be right at the cusp of that. Again, given the heightened penalties here, I think that is a policy that needs to be revisited by MSHA. I don't have any real problems with the increase in penalty points for the negligence and the modification of points for persons potentially affected, but there does not seem to be a valid basis for the fivefold increase in penalty points under the gravity that you have in some instances. It effectively eliminates the distinction between S&S and non-S&S citations, from a penalty perspective. For example, a non-S&S citation classified as unlikely, but if an injury resulted, it would be fatal, would have 30 penalty points for gravity, whereas an S&S citation classified as reasonably likely to result in lost work days would have 35 penalty points for gravity. Again, these gravity findings are highly subjective, and since far fewer citations may be able to be conferenced in the future, many of these non-S&S citations will be forced to proceed to trial if the heightened penalties are adopted. So the current penalty points for gravity, I believe, should be maintained. I also oppose reducing the good-faith penalty decrease from 30 percent to 10 percent, as this provides a disincentive for prompt abatement. It seems contrary to the letter and the spirit of both the Mine Act and the Miner Act, and there is no justification given for it. If somebody doesn't timely abate, MSHA already has fairly severe sanctions they can impose under Section 104(b) of the Mine Act, as well as, of course, specially assessing the related citations. But to reduce this good-faith reduction without any justification seems only intended to further hike the penalties on those good operators. The special assessment process; there needs to be some objective criteria retained for this. MSHA should not have unfettered discretion to specially assess any citations it chooses. This can be used to selectively target operators who are critical of MSHA, who have disputes with district managers, or who exercise their due process rights under the law. So the existing list of eight categories for special assessment is permitted, should be retained, and there should also be public guidance that clarifies who special assessment computations are obtained. Any action to the contrary, I believe, violates mine operators' rights under the Fifth Amendment and also under the Administrative Procedure Act. With respect to the repeat violations, there is really no need to include a repeat violation category under the regular assessment penalty point scheme, and it should be deleted. In my opinion, it is redundant, with a history of violations criteria. In many cases, it is going to be counting those same citations twice solely for the purpose of escalating the punitive civil penalties, and these penalties, under the original act, are supposed to be a deterrent; they are not supposed to be punitive. Moreover, many MSHA standards are subjective, and so one standard can cover a multitude of sins. For example, safe access can relate to anything from a bent ladder step, to a table that's stretching across a walkway, to having to step over a barrier in order to change a screen. This does not mean that they are having the same problem arising over and over again. In a plant, the safe access citation can refer to almost anything. I think of it as MSHA's general duty clause, really, and that needs to be considered. Housekeeping is another one that can be very subjective. Also, another problem with the repeat violations is that, unlike OSHA, MSHA does not group its violations. With OSHA, if you have a couple of fire extinguishers that have expired tags, you're going to get one citation that's going to say: "Fire extinguishers were found not to have a current inspection tag." With MSHA, every single fire extinguisher that has an expired tag is going to be written as a separate citation, and if you don't believe me, I have one operation that got 35 fire extinguisher citations in a single inspection, and not one of those had any problem with its functional operation. It was simply a paperwork violation. Under the proposed scheme here, they would clearly be in the repeat category, and those would be astronomical fines for that operator, even though there was no impact on safety whatsoever. So perhaps, at a minimum, if you are going to go forward with this repeat criteria, it should excluded non-S&S citations and especially those that are paperwork in nature because, otherwise, unless there is some consistency in enforcement, or unless you have performance-oriented standards, this is going to be a meaningless exercise. No one is going to be able to predict what will trigger a repeat violation. Finally, the repeat criteria, if you choose to go down this misguided path, should be prospective only in nature, and it should not consider any citations that were issued prior to rule's effective date. There is a legal presumption, as you know, against retroactivity of laws, and many operators have already, during the past 15 months and today, accepted non-S&S and other citations that were relatively low penalty because they were unaware that the agency was going to consider using those against them in the future for the purpose of jacking up the penalties. No doubt, many of those cases would have been adjudicated if this information had been available. So the penalty repeat criteria should be limited to prospective application, if it is used at all. That is really all I have to say other than I think MSHA has grossly underestimated the cost of this rule. They have looked at the across-the-board increase in penalties, which is threefold, as Mr. Fitch said, but MSHA itself is also going to have its resources adversely impacted because more inspectors, more field office supervisors, more district managers are going to be involved in hearings that will take them out of the fields and diminish their availability for inspections and compliance assistance. Moreover, company resources that would otherwise be dedicated to improving safety, purchasing safety equipment, purchasing outside training resources; those resources are going to be impacted because many times the cost of adjudicating citations comes right out of a company's safety budget. So I do appreciate your patience in listening to me here. I realize I've gone over my allotted time, and I will be happy to respond to any questions you might have, and I will submit these comments in a more detailed manner for the record. Thank you. MS. SILVEY: Thank you. I do have a few comments, and Jay does also. The last thing you said was a good segue into my first comment, and your statement that we did not provide any basis for showing that the rule would result in an improvement in safety and health performance. On page 53069, we show, and I'm going to get to the second part of your statement where you said we underestimated the cost, we show the impact of the proposal, both with unchanged compliance and with increased compliance response to higher penalties. Now, we didn't go the next step, and I'll say that to everybody, which would be to take that improved compliance and quantify that in terms of safety and health results, but, clearly, we projected that as a result of increased penalties, operators would expend, as you said, would expend increased costs to improve compliance. Everything we put in here is a projection. We've got to make some projections, an estimate, and, in so doing, we projected that operators would expend, I believe, $8.9 million of additional expenditures to improve compliance so that ultimately these improved costs would result in increased safety and health at the mine and, therefore, reduced violations. Now, as I said, the next step would be to take that improved compliance and try to express it, quantify it, in terms of safety and health performance, and we did not take it to the next step, to quantify, but we do believe that the increased penalties will qualitatively result in -- actually more than qualitatively, I think I can say, but we just didn't take it to the next step. But if you have any additional, and I'm sure you will, if you have any additional comments or any additional specifics with respect to costs, if you would include those in your comments to us, your written comments to us. The other thing I would comment on, where you said, MSHA has refused to give out a new mine ID where the company has changed ownership, and I was first going to ask you if you could provide specific examples for the record, but before I do that, I'm going to ask Jay to address that because I think we can address that right now. Jay? MR. MATTOS: It would be good to know what the specifics were -- MS. SILVEY: So I'll still ask you to provide the specifics. MR. MATTOS: The history is supposed to restart with the change in ownership at an operation, notwithstanding a new mine ID. Was it an operator ID that they were trying to -- MS. ABRAMS: It was. You know, there is no secret in this because the request was made through the Solicitor's Office and was discussed with the Dallas Metal-Nonmetal Office, and the request was rejected. It was after U.S. Lime purchased the St. Clair mine that had previously been owned by Oglebay Norton. MR. MATTOS: And they requested a new mine ID? MS. ABRAMS: They requested a new mine ID because they had a new safety director, the had new management people at the mine, and they are both separate, publicly traded companies with no links between them whatsoever. I was told without qualification that MSHA no longer will give out a new mine ID number. If you buy somebody else's problem, you have inherited that problem, and you have to pay the higher penalties. MR. MATTOS: Just to clarify, with a change in ownership, you get a new operator ID versus a new mine ID. The mine IDs are supposed to follow the property forever. MS. ABRAMS: They would not wipe the history. MR. MATTOS: The history is supposed to be started with that, but we need to check into that to make sure. MS. SILVEY: We'll check into that. MR. MATTOS: But just to clarify, the system is supposed to work the way you described, not with a new mine ID but with -- MS. ABRAMS: This was this year. MS. SILVEY: We'll check into that. MR. MATTOS: One question I had: You referred to special assessments quite a bit, and one thing I would like to clarify is that our hope and expectation is a reduced number of special assessments. The reason that the committee recommended removing that specific list was because we don't want to be obligated to look at those for special assessments. We would like to see if we can get those through the regular formula and not specially assess those. So it really is our hope to reduce the number of special assessments. We already have discretion to specially assess any citation or order. What we don't want to do is say, we are actually going to review every one of these types for special assessment. The regular penalty formula will take care of it. That's our hope. Is that why you thought that the special assessments would go up, the number would go up? MS. ABRAMS: Well, once you have no parameters against which to benchmark or project what an agency may do, it does lead to arbitrary and capricious application, and under the historical model, the district managers, in the first instance, with input from the inspectors, made the initial recommendations for special assessment. I used to see those forms before you stopped giving them out, and I have a case right now, a motion for settlement just went over, where there is a lot of friction between the district manager and a small operator, and they specially assessed everything, to the tune of over $19,000, and, in the end, the case settled in the $4,000 range. But all of those had to be rolled back, and a majority of the citations ended up, under the guidance of the Solicitor's Office, being put back into regular assessments because it was clear, after depositions, at no small cost to the operator and, presumably, to the agency as well, it made it clear there was no basis for why every citation in this particular inspection had been characterized as having elevated negligence, even though they were all non-S&S. It pretty much came out that it was solely for the purpose of kicking it into special assessments. MS. SILVEY: But, you know, just to follow on to what Jay said, it's funny how different -- you know, you can articulate different things in what you do. Our goal was, just as Jay said, to have fewer things in the category of special assessments and, therefore, to allow, as you said -- MSHA does spend quite a number of resources on doing special assessments -- to allow more attention to be spent directly doing direct field enforcement activities. That was, indeed, our goal, and we followed that through in terms of projections, in terms of taking our 2005 violation data and projecting how it would be treated under this proposed rule. So, you know, we will, obviously, look at all of the comments and things that we receive and take comments into consideration, but our goal was to try to create a more appropriate penalty through the formula system with the sense of reducing resources. MS. ABRAMS: I'm pleased to hear you say that for the record because I don't think that's how it came across in the proposed rule, but I, again, have to caution that you need to be very careful about the misapplication of this based upon personal vendettas that may exist between some mine operators or mine personnel and either the inspectors of district managers in certain areas of the country. Without some parameters, this does leave itself open to accusations against the agency of engaging in arbitrary and capricious acts that are an abuse of discretion. The other thing I would note is, about a year or so ago, I was at the Admachet Mineral Law Foundation seminar that they held over at the Department of Labor, and I believe Page Jackson stood up at that meeting and stated that every citation that is specially assessed is also reviewed for possible criminal referral. And if that is, indeed, still the case, then any citation that could be specially assessed has to be taken extremely seriously by a mine operator and should very well be a candidate for consideration for an expedited hearing under the Federal Mine Safety and Health Review Commission procedures that allow a hearing within 72 hours because, obviously, if the citation can be kicked out at that stage, it obviates the potential for there to be a criminal investigation. Thank you very much. MS. SILVEY: Thank you. MR. MATTOS: Thank you. MS. SILVEY: Next, we have Patrick Jacomet with Ohio Aggregates and Industrial Minerals Association. MR. JACOMET: Good morning. ALL: Good morning. MR. JACOMET: My name is Patrick Jacomet. I'm with the Ohio Aggregates and Industrial Minerals Association, and our trade association represents 94 producers of aggregates and industrial minerals, which would include limestone-tainted gravel, salt-clay shale, and dimensional stones. We also have 84 associate members, which would be suppliers of ancillary items, such as tires, loaders, belting, and those types of services. We represent over 90 percent of Ohio's production of 150 million tons. This morning, I would like to thank you for the opportunity to be here and to speak to you. I'm going to reiterate a lot of things that have been said already, and I will offer written testimony later on, so I'll try to abbreviate what I have written down today for you. When MSHA was first created under the 1977 Mine Act, the maximum civil penalty was $10,000. It has since been increased several times to the current maximum penalty of $60,000. When Congress amended the 1977 law this year and the Miner Act, a new maximum penalty for flagrant violations was set at $220,000, and certain statutory minimum penalties were designated for Section 104(d) citations and orders, as well as violations of the immediate reporting requirements in 30 C.F.R. ? 5010. The Ohio Aggregates Association recognizes that MSHA has no discretion to deviate from these standard minimums and must also implement the $220,000 maximum penalty for flagrant offenses for those citations issued after June 16 of this year. Therefore, we limit our comments to those areas where MSHA has gone, we feel, beyond the directives from Congress in ways that are punitive and violative of due process rights or which will have counterproductive impact on abatement of alleged violations. First of all, the single penalty assessment. The Ohio Aggregates and Industrial Minerals Association opposes MSHA's proposal to delete entirely the single penalty assessment, which is currently set at $60 per nonsignificant and substantial violations, or S&S violations. It is important to recognize that such citations often occur for highly subjective conditions where one inspector may find a situation of full conformity with MSHA requirements while another issues a citation because he or she speculates that a miner hazard might exist if the condition continued to exist in the future. Often these involve housekeeping items, such as Ms. Abrams mentioned: unflushed toilets, rags, material on walkways, uncovered trash cans, minor holes in guards in access areas, and other equipment defects which, in normal service, would be considered minor issues. Often a mine operator is not on notice of a potential violation because other inspectors did not see a problem with that condition. Other categories of non-S&S citations include paperwork, such as late filing, failure to note an inspection date on a fully charged fire extinguisher, or faded labels or other technical violations of MSHA's HAZCOM rules. Often these are rated as no likelihood of injury and/or low or no negligence. Now, under OSHA's analogous penalty system, similar violations are classified as "other than serious" or sometimes called "de minimis." It is common that no penalty at all is assessed. It is sensible that, if MSHA must issue a penalty, that a single penalty assessment be maintained for these low- or no-hazard technical violations. The Ohio Aggregates Association does believe that raising the single minimum penalty under the revised Part 100 to $112 per citation for non-S&S citations is not needed. MSHA historically has reserved the right to specially assess high negligence for non-S&S citations, and the Ohio Aggregates Association does not have any quarrel with continuation of that approach. With regard to regular assessment criteria, the Ohio Aggregates and Industrial Minerals Association supports reduction of the history-of-violations period from the previous 24 months to the 15 months to clarify that this refers only to citations or orders that have been fully adjudicated. The Ohio Aggregates Association opposes the new repeat violation criteria, as discussed later. The BPID criteria achieve the goal of discouraging high rates of citations and should be continued in its present form. We support including a minimum number of citations, 10 in the preceding 15 months, under the proposed rule, to trigger history points because many small operations may not have sufficient overall inspection days to offset such relatively low number of citations. To add to that, we represent approximately 486 surface mines across the State of Ohio, and many of these operations are still small, family-owned operations with single, or maybe just two, production plants. So this really strikes a chord with a lot of our producing members in Ohio. The same criteria should also be used for contractors, as Ms. Abrams had mentioned later, working at mines. We disagree with enhancing history penalty criteria for contractors as many contractors have the single MSHA contractor ID number for nationwide operations. The Ohio Aggregates Association does not oppose increasing the penalty points associated with negligence ratings for citations. It does oppose the fivefold increase in penalty points for those citations classified as unlikely to result in injury or illness, as this effectively eliminates the distinction between S&S and non-S&S citations, from a penalty perspective. Since the gravity findings of an inspector are highly subjective, and since far fewer citations will be conferenced in the future if this proposal is adopted, many non-S&S citations will have to proceed to trial if these heightened penalties are adopted. Therefore, the Ohio Aggregates Association recommends that the current penalty points for gravity be maintained. The Ohio Aggregates Association does not oppose a modification of points for persons potentially affected but does encourage MSHA to be realistic about the application of this criteria. Some inspectors routinely put down one miner for this, which may not be realistic, while others go to the other extreme, counting every employee as potentially affected, even where they never go to the cited area of the mine. Some guides to the regulated community and to compliance officers as to how this will be computed would be very beneficial to us. The Ohio Aggregates Association opposes reducing the good-faith penalty decrease from 30 percent to 10 percent, as this is a disincentive to prompt abatement and seems contrary to the letter and spirit of the Miner Act. In regards to special assessments, the Ohio Aggregates Association opposes the revision of the special assessment process because it removes virtually all constraints against use of this potentially punitive power against operators when used in an arbitrary manner. MSHA should not have complete discretion to specially assess any citations it chooses. This could be used to selectively target operators who are critical of MSHA who exercise their due process rights under the law. The existing list of eight categories where special assessment is permitted should be retained, as should public guidance that clarifies how special assessment computations are obtained. The Ohio Aggregates Association recognizes that the new penalty of $220,000 is required under the Miner Act for flagrant violations, but we are concerned that the definition of "flagrant violations" contained in the proposed rule is overly vague and will be susceptible to capricious and inconsistent enforcement. As noted below, the inclusion of the term "repeated" can lead to subjective results and should be eliminated. The $220,000 penalty should be limited to repeat violations of the same standard that were issued under Section 104(d) of the act and were characterized as involving reckless disregard. Moreover, to trigger this maximum penalty assessment, any previous violations considered must have already been finally adjudicated at the time that the new citation is issued. In other words, those that are still pending litigation cannot trigger the heightened penalty for a subsequent citation under the same standard. With regard to the statutory minimum penalty for immediate notification -- this is the 15-minute standard -- on one of those citations issued for failure to notify of death or accident with a reasonable likelihood of a resulting death should receive such a penalty. Other Part 5, 50.10 violations, in other words, failure to report a fire or a hoist problem, should not be subject to the $5,000 minimum penalty, as this goes beyond the intent of Congress in the Miner Act. Again, this is near and dear to the heart of our industry in Ohio, where we do have a lot of family operations, and, indeed, our members, we consider them one big family, and we do take safety very seriously. We have concerns that the 15-minute notification will be a problem for some operators where they have to make a split-second decision on whether to try to contact the MSHA office or provide immediate care to an accident victim. Fifteen minutes -- we believe there should be some kind of leeway, maybe 15 minutes after the accident site is stabilized. Our first priority needs to be to stabilize someone who has been injured, stabilize the situation so that no one else is injured, make sure that we get the proper health care people out there as quickly as possible. Our priority does not need to be trying to contact the MSHA office a couple of hundred miles away. That is really at the heart of our problem with these rules as they stand right now. We would appreciate some clarification to that 15-minute rule. With regard to repeat violations, there is no need to include a repeat violation category in the regular assessment penalty point scheme, and it should be deleted. The Ohio Aggregates Association believes that this is redundant, with the history-of-violations criteria that consider the same citations twice in many cases. Another problem is that, unlike OSHA, MSHA does not group violations into a single citation. Therefore, an operator missing inspections fire extinguishers by a few days, which is a technical violation, may find that he has several citations for the same violation. It's not inconceivable that you could have 10 or 15 violations for fire extinguishers at any one time. Until MSHA can ensure consistency in its enforcement, and unless it switches from performance-oriented standards to objective criteria, the repeat citation criteria should be rejected. At a minimum, only S&S citations should be included under the repeat criteria, and the number of inspection days should also be considered, with an exemption for small operations that have relatively few inspection days, as noted in the BPID criteria. Lastly, conference requests. The Ohio Aggregates Association is puzzled by the inclusion of a shortened period for requesting an informal conference, as this seems designed to thwart early settlement attempts and to encourage protracted litigation. MSHA needs to understand that for many larger companies, citations may be received at the mine site, which can be a small, satellite facility, such as a portable plant or a local office. It may take several days or up to a week or more for the citations to be forwarded to the appropriate person within the larger corporate safety department in the company. The citations are processed and reviewed to determine whether to dispute the allegations. In some cases, mail must be forwarded if a mine operates intermittently, like a seasonal or portable operation. In some cases, MSHA inspectors have been known to leave the contractor citations at the mine office rather than delivering them to the contractor himself. This can further delay the ability to request a conference within the allotted time. Thus, by reducing the time to request a conference from 10 to five days, this may preclude utilization of the conference process entirely for a large number of citations on operations. Because the litigation costs often come out of the safety department's budget, this approach is also harmful because it will reduce resources that could otherwise be dedicated to training programs, purchase of safety equipment, et cetera. We recommend that the 10-day conference-request deadline be maintained. Again, we will be offering written comments at a later date. I would welcome any questions from the Committee. Thank you. MS. SILVEY: Thank you. I would like to make a couple of comments, not questions, per se. I've heard this, and I'm sure we're going to continue to hear it as we go through these civil penalty hearings, about the inspector subjectivity, and, obviously, I think that we would all agree that anywhere you have the human element involved, there is going to be some subjectivity, but, as I stated in my opening statement, basically, there is no change in process in terms of how the inspectors, under the new proposal, how the inspectors will issue citations and orders and any other enforcement paper. We do, in a variety of ways -- we have activities where we try to promote consistency and minimize subjectivity, but I would be the first to say that, as I said, where you have human beings involved, there will be some subjectivity and probably some inconsistency, and we do our best to minimize that. Along that line, I would like to specifically comment on what you said about the failure-to-notify penalty. As you stated and I stated, that was included in the Miner Act. In this proposal, we were consistent with the Miner Act. It will be limited to the three situations that are included in the Miner Act, which are death, injury with the potential to cause death, or entrapment with the potential to cause death. And you stated that you represent a number of small companies in Ohio, and I would suggest to you that if it were a two-person company, and somebody was injured, and the other person was furiously rendering aid to the person who is injured, that I would think that, under those circumstances, MSHA would want the person left to continue rendering aid and that it would be the circumstances of the situation which would determine when the person would call into MSHA. If it's two people, and one is rendering aid, and it's a matter of rendering aid or calling into MSHA, I wouldn't think that I would have to say to you what you would do or what I would do under those circumstances, and I think MSHA would understand that. So, in any event, I guess what I'm trying to say by saying that is, you know, we create the worst kinds of scenarios. I don't think, and maybe I'm being sort of overly optimistic, I don't think that we are going to necessarily see these worst-case scenarios just sort of creeping up everywhere. I would hope that if I'm wrong, you might call me on my phone number, and I'll give it to you when this hearing is over. So that's one thing I would like to say. And then another thing is that, as with any safety and health legislation, and the Mine Act clearly -- Adele said, I think, earlier -- was pervasive safety and health legislation, and it is, but any safety and health legislation is remedial in nature. By that, I mean that it seeks to prevent safety and health situations, accidents, before they occur, prevent hazardous situations. I think that all of the activities, including the things in this civil penalty proposal, are in that nature. Our greatest goal is, quite honestly, that there be no violations in the workplace and, therefore, no circumstances to which a miner could be exposed to situations that might cause injuries or illnesses. So it's with that goal in mind that we published this proposal, and so, you know, we've heard some good comments this morning up to yours already, and we will, obviously, pay attention to those, but I think one of the things we do want to stress, and the mining industry, both industry and labor, are working partners with us in this, and that is in hoping that we carry out the true meaning of the Mine Act, and that is the remedial nature of it. Those are all of the things, not to sound preachy, that I would like to say. Does anybody else have any comments? (No response.) MS. SILVEY: Thank you very much. Those were the only names on the list. Are there any other persons here who wish to comment or provide testimony? (No response.) MS. SILVEY: Okay. Well, then, there being no other persons who wish to comment or provide testimony, I'll tell you what I'm going to do, which is a little unusual at ten-thirty. I think what I'll do is we appreciate everybody being here today and appreciate your interest in this hearing. I'm sure that as we move forward with the remainder of the hearings, that we will see some of you, and we will get further comment and testimony. But for purposes of this hearing, I think I will tentatively close it right now, but we will check back in about, let's say -- this is ten-thirty -- we will check back at about eleven-thirty to see if anybody shows who wishes to, and, at that point, I'll reconvene it. But for purposes of right now, it's closed. Thank you. (Whereupon, at 10:30 a.m., a short recess was taken.) MS. SILVEY: I'm Patricia W. Silvey, and, at this point, I would like to reopen the Mine Safety and Health Administration's rule-making hearing on its civil penalty proposal. Are there any more persons here who wish to make comment or testimony? (No response.) MS. SILVEY: There being no additional persons who wish to provide testimony at today's public hearing, then I would like to officially close this hearing. I want to let you know that the Mine Safety and Health Administration appreciates all of those who provided comment and testimony here today, as well as those who were in attendance here who may not have provided testimony but have an interest in this rule-making. We anticipate that we will see some of you, and we will get additional comment and testimony at the five remaining hearings, and, as I said earlier, please feel free to provide any comments that you may wish to us before the record closes on October 23, recognizing that we are under somewhat tight time constraints, having to meet the requirements of the Miner Act. So, with no additional comments, this hearing is concluded. Thank you. (Whereupon, at 11:32 a.m., the proceeding in the above-entitled matter was concluded.) // // // // // // REPORTER'S CERTIFICATE DOCKET NO.: -- CASE TITLE: Public Hearing on Proposed Rule Criteria and Procedures HEARING DATE: September 26, 2006 LOCATION: Arlington, VA 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 / Mine Safety and Health Administration Date: 9/26/06 Christina Chesley Official Reporter Heritage Reporting Corporation Suite 600 1220 L Street, N. W. Washington, D. C. 20005-4018 ?? TRANSCRIPT OF PROCEEDINGS HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 600 Washington, D.C. 20005-4018 (202) 628-4888 hrc@concentric.net 59 Heritage Reporting Corporation (202) 628-4888 61 Heritage Reporting Corporation (202) 628-4888