(a) General. (1) Except as provided in §100.5(e), the operator of any mine in which a violation occurs of a mandatory health or safety standard or who violates any other provision of the Mine Act, as amended, shall be assessed a civil penalty of not more than $69,417. Each occurrence of a violation of a mandatory safety or health standard may constitute a separate offense. The amount of the proposed civil penalty shall be based on the criteria set forth in sections 105(b) and 110(i) of the Mine Act. These criteria are:
(i) The appropriateness of the penalty to the size of the business of the operator charged;
(ii) The operator’s history of previous violations;
(iii) Whether the operator was negligent;
(iv) The gravity of the violation;
(v) The demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of a violation; and
(vi) The effect of the penalty on the operator’s ability to continue in business.
(2) A regular assessment is determined by first assigning the appropriate number of penalty points to the violation by using the appropriate criteria and tables set forth in this section. The total number of penalty points will then be converted into a dollar amount under the penalty conversion table in paragraph (g) of this section. The penalty amount will be adjusted for demonstrated good faith in accordance with paragraph (f) of this section.
(b) The appropriateness of the penalty to the size of the business of the operator charged. The appropriateness of the penalty to the size of the mine operator’s business is calculated by using both the size of the mine cited and the size of the mine’s controlling entity. The size of coal mines and their controlling entities is measured by coal production. The size of metal and nonmetal mines and their controlling entities is measured by hours worked. The size of independent contractors is measured by the total hours worked at all mines. Penalty points for size are assigned based on Tables I to V. As used in these tables, the terms “annual tonnage” and “annual hours worked” mean coal produced and hours worked in the previous calendar year. In cases where a full year of data is not available, the coal produced or hours worked is prorated to an annual basis. This criterion accounts for a maximum of 25 penalty points.