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111th Congress                                            Rept. 111-579
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

======================================================================



 
           ROBERT C. BYRD MINER SAFETY AND HEALTH ACT OF 2010

                                _______
                                

 July 29, 2010.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. George Miller of California, from the Committee on Education and 
                     Labor, submitted the following

                              R E P O R T

                             together with

                    SUPPLEMENTAL AND MINORITY VIEWS

                        [To accompany H.R. 5663]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Education and Labor, to whom was referred 
the bill (H.R. 5663) to improve compliance with mine and 
occupational safety and health laws, empower workers to raise 
safety concerns, prevent future mine and other workplace 
tragedies, establish rights of families of victims of workplace 
accidents, and for other purposes, having considered the same, 
report favorably thereon with an amendment and recommend that 
the bill as amended do pass.

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

  (a) Short Title.--This Act may be cited as the ``Robert C. Byrd Miner 
Safety and Health Act of 2010''.
  (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. References.

       TITLE I--ADDITIONAL INSPECTION AND INVESTIGATION AUTHORITY

Sec. 101. Independent accident investigations.
Sec. 102. Subpoena authority and miner rights during inspections and 
investigations.
Sec. 103. Designation of miner representative.
Sec. 104. Additional amendments relating to inspections and 
investigations.

                TITLE II--ENHANCED ENFORCEMENT AUTHORITY

Sec. 201. Technical amendment.
Sec. 202. A pattern of recurring noncompliance or accidents.
Sec. 203. Injunctive authority.
Sec. 204. Revocation of approval of plans.
Sec. 205. Challenging a decision to approve, modify, or revoke a coal 
or other mine plan.
Sec. 206. GAO Study on MSHA Mine Plan Approval.

                          TITLE III--PENALTIES

Sec. 301. Civil penalties.
Sec. 302. Civil and criminal liability of officers, directors, and 
agents.
Sec. 303. Criminal penalties.
Sec. 304. Commission review of penalty assessments.
Sec. 305. Delinquent payments and prejudgment interest.

                TITLE IV--WORKER RIGHTS AND PROTECTIONS

Sec. 401. Protection from retaliation.
Sec. 402. Protection from loss of pay.
Sec. 403. Underground coal miner employment standard for mines placed 
in pattern status.

            TITLE V--MODERNIZING HEALTH AND SAFETY STANDARDS

Sec. 501. Pre-shift review of mine conditions.
Sec. 502. Rock dust standards.
Sec. 503. Atmospheric monitoring systems.
Sec. 504. Technology related to respirable dust.
Sec. 505. Refresher training on miner rights and responsibilities.
Sec. 506. Authority to mandate additional training.
Sec. 507. Certification of personnel.

              TITLE VI--ADDITIONAL MINE SAFETY PROVISIONS

Sec. 601. Definitions.
Sec. 602. Assistance to States.
Sec. 603. Black lung medical reports.
Sec. 604. Rules of application to certain mines.

    TITLE VII--AMENDMENTS TO THE OCCUPATIONAL SAFETY AND HEALTH ACT

Sec. 701. Enhanced protections from retaliation.
Sec. 702. Victims' rights.
Sec. 703. Correction of serious, willful, or repeated violations 
pending contest and procedures for a stay.
Sec. 704. Conforming amendments.
Sec. 705. Civil penalties.
Sec. 706. Criminal penalties.
Sec. 707. Pre-final order interest.
Sec. 708. Review of State Occupational Safety and Health Plans.
Sec. 709. Health Hazard Evaluations by the National Institute for 
Occupational Safety and Health.
Sec. 710. Authorization of cooperative agreements by NIOSH Office of 
Mine Safety and Health.
Sec. 711. Effective date.

SEC. 2. REFERENCES.

  Except in title VII and as otherwise expressly provided, whenever in 
this Act an amendment is expressed as an amendment to a section or 
other provision, the reference shall be considered to be made to a 
section or other provision of the Federal Mine Safety and Health Act of 
1977 (30 U.S.C. 801 et seq.).

       TITLE I--ADDITIONAL INSPECTION AND INVESTIGATION AUTHORITY

SEC. 101. INDEPENDENT ACCIDENT INVESTIGATIONS.

  (a) In General.--Section 103(b) (30 U.S.C. 813(b)) is amended by 
striking ``(b) For the purpose'' and inserting the following:
  ``(b) Accident Investigations.--
          ``(1) In general.--For all accident investigations under this 
        Act, the Secretary shall--
                  ``(A) determine why the accident occurred;
                  ``(B) determine whether there were violations of law, 
                mandatory health and safety standards, or other 
                requirements, and if such violations are found, issue 
                citations and penalties, and in cases involving 
                possible criminal actions, the Secretary may refer such 
                matters to the Attorney General; and
                  ``(C) make recommendations to avoid any recurrence.
          ``(2) Independent accident investigations.--
                  ``(A) In general.--There shall be, in addition to an 
                accident investigation under paragraph (1), an 
                independent investigation by an independent 
                investigation panel (referred to in this subsection as 
                the `Panel') appointed under subparagraph (B) for--
                          ``(i) any accident involving 3 or more 
                        deaths; or
                          ``(ii) any accident that is of such severity 
                        or scale for potential or actual harm that, in 
                        the opinion of the Secretary of Health and 
                        Human Services, the accident merits an 
                        independent investigation.
                  ``(B) Appointment.--
                          ``(i) In general.--As soon as practicable 
                        after an accident described in subparagraph 
                        (A), the Secretary of Health and Human Services 
                        shall appoint 5 members for the Panel required 
                        under this paragraph from among individuals who 
                        have expertise in accident investigations, mine 
                        engineering, or mine safety and health that is 
                        relevant to the particular investigation.
                          ``(ii) Chairperson.--The Panel shall include, 
                        and be chaired by, a representative from the 
                        Office of Mine Safety and Health Research, of 
                        the National Institute for Occupational Safety 
                        and Health (referred to in this subsection as 
                        NIOSH).
                          ``(iii) Conflicts of interest.--Panel 
                        members, and staff and consultants assisting 
                        the Panel with an investigation, shall be free 
                        from conflicts of interest with regard to the 
                        investigation, and be subject to the same 
                        standards of ethical conduct for persons 
                        employed by the Secretary.
                          ``(iv) Composition.--The Secretary of Health 
                        and Human Services shall appoint as members of 
                        the Panel--
                                  ``(I) 1 operator of a mine or 
                                individual representing mine operators, 
                                and
                                  ``(II) 1 representative of a labor 
                                organization that represents miners,
                        and may not appoint more than 1 of either such 
                        individuals as members of the Panel.
                          ``(v) Staff and expenses.--The Director of 
                        NIOSH shall designate NIOSH staff to facilitate 
                        the work of the Panel. The Director may accept 
                        as staff personnel on detail from other Federal 
                        agencies or re-employ annuitants. The detail of 
                        personnel under this paragraph may be on a non-
                        reimbursable basis, and such detail shall be 
                        without interruption or loss of civil service 
                        status or privilege. The Director of NIOSH 
                        shall have the authority to procure on behalf 
                        of the Panel such materials, supplies or 
                        services, including technical experts, as 
                        requested in writing by a majority of the 
                        Panel.
                          ``(vi) Compensation and travel.--All members 
                        of the Panel who are officers or employees of 
                        the United States shall serve without 
                        compensation in addition to that received for 
                        their services as officers or employees of the 
                        United States. Each Panel member who is not an 
                        officer or employee of the United States shall 
                        be compensated at a rate equal to the daily 
                        equivalent of the annual rate of basic pay 
                        prescribed for level IV of the Executive 
                        Schedule under section 5315 of title 5, United 
                        States Code, for each day (including travel 
                        time) during which such member is engaged in 
                        the performance of duties of the Panel. The 
                        members of the Panel shall be allowed travel 
                        expenses, including per diem in lieu of 
                        subsistence, at rates authorized for employees 
                        of agencies under subchapter 1 of chapter 57 of 
                        title 5, United States Code, while away from 
                        their homes or regular places of business in 
                        the performance of services for the Panel.
                  ``(C) Duties.--The Panel shall--
                          ``(i) assess and identify any factors that 
                        caused the accident, including deficiencies in 
                        safety management systems, regulations, 
                        enforcement, industry practices or guidelines, 
                        or organizational failures;
                          ``(ii) identify and evaluate any contributing 
                        actions or inactions of--
                                  ``(I) the operator;
                                  ``(II) any contractors or other 
                                persons engaged in mining-related 
                                functions at the site;
                                  ``(III) any State agency with 
                                oversight responsibilities;
                                  ``(IV) any agency or office within 
                                the Department of Labor; or
                                  ``(V) any other person or entity 
                                (including equipment manufacturers);
                          ``(iii) review the determinations and 
                        recommendations by the Secretary under 
                        paragraph (1);
                          ``(iv) prepare a report that--
                                  ``(I) includes the findings regarding 
                                the causal factors described in clauses 
                                (i) and (ii);
                                  ``(II) identifies any strengths and 
                                weaknesses in the Secretary's 
                                investigation; and
                                  ``(III) includes recommendations, 
                                including interim recommendations where 
                                appropriate, to industry, labor 
                                organizations, State and Federal 
                                agencies, or Congress, regarding 
                                policy, regulatory, enforcement, 
                                administrative, or other changes, which 
                                in the judgment of the Panel, would 
                                prevent a recurrence at other mines; 
                                and
                          ``(v) publish such findings and 
                        recommendations (excluding any portions which 
                        the Attorney General requests that the 
                        Secretary withhold in relation to a criminal 
                        referral) and hold public meetings to inform 
                        the mining community and families of affected 
                        miners of the Panel's findings and 
                        recommendations.
                  ``(D) Hearings; applicability of certain federal 
                law.--The Panel shall have the authority to conduct 
                public hearings or meetings, but shall not be subject 
                to the Federal Advisory Committee Act. All public 
                hearings of the Panel shall be subject to the 
                requirements under section 552b of title 5, United 
                States Code.
                  ``(E) Memorandum of understanding.--Not later than 90 
                days after the date of enactment of the Robert C. Byrd 
                Miner Safety and Health Act of 2010, the Secretary of 
                Labor and the Secretary of Health and Human Services 
                shall conclude and publically issue a memorandum of 
                understanding that--
                          ``(i) outlines administrative arrangements 
                        which will facilitate a coordination of efforts 
                        between the Secretary of Labor and the Panel, 
                        ensures that the Secretary's investigation 
                        under paragraph (1) is not delayed or otherwise 
                        compromised by the activities of the Panel, and 
                        establishes a process to resolve any conflicts 
                        between such investigations;
                          ``(ii) ensures that Panel members or staff 
                        will be able to participate in investigation 
                        activities (such as mine inspections and 
                        interviews) related to the Secretary of Labor's 
                        investigation and will have full access to 
                        documents that are assembled or produced in 
                        such investigation, and ensures that the 
                        Secretary of Labor will make all of the 
                        authority available to such Secretary under 
                        this section, including subpoena authority, to 
                        obtain information and witnesses which may be 
                        requested by such Panel; and
                          ``(iii) establishes such other arrangements 
                        as are necessary to implement this paragraph.
                  ``(F) Procedures.--Not later than 90 days after the 
                date of enactment of the Robert C. Byrd Miner Safety 
                and Health Act of 2010, the Secretary of Health and 
                Human Services shall establish procedures to ensure the 
                consistency and effectiveness of Panel investigations. 
                In establishing such procedures, such Secretary shall 
                consult with independent safety investigation agencies, 
                sectors of the mining industry, representatives of 
                miners, families of miners involved in fatal accidents, 
                State mine safety agencies, and mine rescue 
                organizations. Such procedures shall include--
                          ``(i) authority for the Panel to use 
                        evidence, samples, interviews, data, analyses, 
                        findings, or other information gathered by the 
                        Secretary of Labor, as the Panel determines 
                        valid;
                          ``(ii) provisions to ensure confidentiality 
                        if requested by any witness, to the extent 
                        permitted by law, and prevent conflicts of 
                        interest in witness representation; and
                          ``(iii) provisions for preservation of public 
                        access to the Panel's records through the 
                        Secretary of Health and Human Services.
                  ``(G) Authorization of appropriations.--There is 
                authorized to be appropriated to carry out this 
                subsection such sums as may be necessary.
          ``(3) Powers and processes.--For the purpose''.
  (b) Reporting Requirements.--Section 511(a) (30 U.S.C. 958(a)) is 
amended by inserting after ``501,'' the following: ``the status of 
implementation of recommendations from each independent investigation 
panel under section 103(b) received in the preceding 5 years''.

SEC. 102. SUBPOENA AUTHORITY AND MINER RIGHTS DURING INSPECTIONS AND 
                    INVESTIGATIONS.

  Section 103(b) (as amended by section 101) (30 U.S.C. 813(b)) is 
further amended by adding at the end the following:
          ``(4) Additional powers.--For purposes of making inspections 
        and investigations, the Secretary or the Secretary's designee, 
        may sign and issue subpoenas for the attendance and testimony 
        of witnesses and the production of information, including all 
        relevant data, papers, books, documents, and items of physical 
        evidence, and administer oaths. Witnesses summoned shall be 
        paid the same fees that are paid witnesses in the courts of the 
        United States. In carrying out inspections and investigations 
        under this subsection, authorized representatives of the 
        Secretary and attorneys representing the Secretary are 
        authorized to question any individual privately. Under this 
        section, any individual who is willing to speak with or provide 
        a statement to such authorized representatives or attorneys 
        representing the Secretary may do so without the presence, 
        involvement, or knowledge of the operator or the operator's 
        agents or attorneys. The Secretary shall keep the identity of 
        an individual providing such a statement confidential to the 
        extent permitted by law. Nothing in this paragraph prevents any 
        individual from being represented by that individual's personal 
        attorney.''.

SEC. 103. DESIGNATION OF MINER REPRESENTATIVE.

  Section 103(f) (30 U.S.C. 813(f)) is amended by inserting before the 
last sentence the following: ``If any miner is entrapped or otherwise 
prevented as the result of an accident in such mine from designating 
such a representative directly, such miner's closest relative may act 
on behalf of such miner in designating such a representative. If any 
miner is not currently working in such mine as the result of an 
accident in such mine, but would be currently working in such mine but 
for such accident, such miner may designate such a representative. A 
representative of miners shall have the right to participate in any 
accident investigation the Secretary initiates pursuant to subsection 
(b), including the right to participate in investigative interviews and 
to review all relevant papers, books, documents and records produced in 
connection with the accident investigation, unless the Secretary in 
consultation with the Attorney General excludes such representatives 
from the investigation on the grounds that inclusion would interfere 
with or adversely impact a criminal investigation that is pending or 
under consideration.''.

SEC. 104. ADDITIONAL AMENDMENTS RELATING TO INSPECTIONS AND 
                    INVESTIGATIONS.

  (a) Hours of Inspections.--Section 103(a) (30 U.S.C. 813(a)) is 
amended by inserting after the third sentence the following: ``Such 
inspections shall be conducted during the various shifts and days of 
the week during which miners are normally present in the mine to ensure 
that the protections of this Act are afforded to all miners working all 
shifts.''.
  (b) Review of Mine Pattern Status.--Section 103(a) is further amended 
by inserting before the last sentence the following: ``The Secretary 
shall, upon request by an operator, review with the appropriate mine 
officials the Secretary's most recent evaluation for pattern status (as 
provided in section 104(e)) for that mine during the course of a mine's 
regular quarterly inspection of an underground mine or a biannual 
inspection of a surface mine, or, at the discretion of the Secretary, 
during the pre-inspection conference.''.
  (c) Injury and Illness Reporting.--Section 103(d) (30 U.S.C. 813(d)) 
is amended by striking the last sentence and inserting the following: 
``The records to be kept and made available by the operator of the mine 
shall include man-hours worked and occupational injuries and illnesses 
with respect to the miners in their employ or under their direction or 
authority, and shall be maintained separately for each mine and be 
reported at a frequency determined by the Secretary, but at least 
annually. Independent contractors (within the meaning of section 3(d)) 
shall be responsible for reporting accidents, occupational injuries and 
illnesses, and man-hours worked for each mine with respect to the 
miners in their employ or under their direction or authority, and shall 
be reported at a frequency determined by the Secretary, but not less 
than annually. Reports or records of operators and contractors required 
and submitted to the Secretary under this subsection shall be signed 
and certified as accurate and complete by a knowledgeable and 
responsible person possessing a certification, registration, 
qualification, or other approval, as provided for under section 118. 
Knowingly falsifying such records or reports shall be grounds for 
revoking such certification, registration, qualification, or other 
approval under the standards established under subsection (b)(1) of 
such section.''.
  (d) Orders Following an Accident.--Section 103(k) (30 U.S.C. 813(k)) 
is amended by striking ``, when present,''.
  (e) Conflict of Interest in the Representation of Miners.--Section 
103(a) (30 U.S.C. 813(a)) is amended by adding at the end the 
following: ``During inspections and investigations under this section, 
and during any litigation under this Act, no attorney shall represent 
or purport to represent both the operator of a coal or other mine and 
any other individual, unless such individual has knowingly and 
voluntarily waived all actual and reasonably foreseeable conflicts of 
interest resulting from such representation. The Secretary is 
authorized to take such actions as the Secretary considers appropriate 
to ascertain whether such individual has knowingly and voluntarily 
waived all such conflicts of interest. If the Secretary finds that such 
an individual cannot be represented adequately by such an attorney due 
to such conflicts of interest, the Secretary may petition the 
appropriate United States District Court which shall have jurisdiction 
to disqualify such attorney as counsel to such individual in the 
matter. The Secretary may make such a motion as part of an ongoing 
related civil action or as a miscellaneous action.''.

                TITLE II--ENHANCED ENFORCEMENT AUTHORITY

SEC. 201. TECHNICAL AMENDMENT.

  Section 104(d)(1) (30 U.S.C. 814(d)(1)) is amended--
          (1) in the first sentence--
                  (A) by striking ``any mandatory health or safety 
                standard'' and inserting ``any provision of this Act, 
                including any mandatory health or safety standard or 
                regulation promulgated under this Act''; and
                  (B) by striking ``such mandatory health or safety 
                standards'' and inserting ``such provisions, 
                regulations, or mandatory health or safety standards''; 
                and
          (2) in the second sentence, by striking ``any mandatory 
        health or safety standard'' and inserting ``any provision of 
        this Act, including any mandatory health or safety standard or 
        regulation promulgated under this Act,''.

SEC. 202. A PATTERN OF RECURRING NONCOMPLIANCE OR ACCIDENTS.

  Section 104(e) (30 U.S.C. 814(e)) is amended to read as follows:
  ``(e) Pattern of Recurring Noncompliance or Accidents.--
          ``(1) Pattern status.--
                  ``(A) In general.--For purposes of this subsection, a 
                coal or other mine shall be placed in pattern status if 
                such mine has, as determined based on the regulations 
                promulgated under paragraph (8)--
                          ``(i) a pattern of--
                                  ``(I) citations for significant and 
                                substantial violations;
                                  ``(II) citations and withdrawal 
                                orders issued for unwarrantable failure 
                                to comply with mandatory health and 
                                safety standards under section 104(d);
                                  ``(III) citations for flagrant 
                                violations within the meaning of 
                                section 110(b);
                                  ``(IV) withdrawal orders issued under 
                                any other section of this Act (other 
                                than orders issued under subsections 
                                (j) or (k) of section 103); and
                                  ``(V) accidents and injuries; or
                          ``(ii) a pattern consisting of any 
                        combination of citations, orders, accidents, or 
                        injuries described in subclauses (I) through 
                        (V).
                  ``(B) Mitigating circumstances.--Notwithstanding 
                subparagraph (A), if the Secretary, after conducting an 
                assessment of a coal or other mine that otherwise 
                qualifies for pattern status, certifies that there are 
                mitigating circumstances wherein the operator has 
                already implemented remedial measures that have reduced 
                risks to the health and safety of miners to the point 
                that such risks are no longer elevated and has taken 
                sufficient measures to ensure such elevated risk will 
                not recur, the Secretary may deem such mine to not be 
                in pattern status under this subsection. The Secretary 
                shall issue any such certification of such mitigating 
                circumstances that would preclude the placement of a 
                mine in pattern status as a written finding, which 
                shall, not later than 10 days after the certification 
                is made, be--
                          ``(i) made available on the public website of 
                        the Mine Safety and Health Administration; and
                          ``(ii) transmitted to the Committee on 
                        Education and Labor of the House of 
                        Representatives and the Committee on Health, 
                        Education, Labor, and Pensions of the Senate.
                  ``(C) Frequency.--Not less frequently than every 6 
                months, the Secretary shall identify any mines which 
                meet the criteria set forth in paragraph (8).
          ``(2) Actions following placement of mine in pattern 
        status.--For any coal or other mine that is in pattern status, 
        the Secretary shall--
                  ``(A) notify the operator of such mine that the mine 
                is being placed in pattern status;
                  ``(B) issue an order requiring such operator to cause 
                all persons to be withdrawn from such mine, except 
                those persons referred to in subsection (c) or 
                authorized by an order of the Secretary issued under 
                this subsection;
                  ``(C) issue a remediation order described in 
                paragraph (3) to such operator within 3 days; and
                  ``(D) require that the number of regular inspections 
                of such mine required under section 103 be increased to 
                8 per year while the mine is in pattern status.
        Notice advising operators that they face potential placement in 
        pattern status shall not be a requirement for issuing a 
        withdrawal order to operators under this subsection.
          ``(3) Remediation order.--
                  ``(A) In general.--A remediation order issued to an 
                operator under paragraph (2)(C) may require the 
                operator to carry out one or more of the following 
                requirements, pursuant to a timetable for commencing 
                and completing such actions or as a condition of miners 
                reentering the mine:
                          ``(i) Provide specified training, including 
                        training not otherwise required under this Act.
                          ``(ii) Institute and implement an effective 
                        health and safety management program approved 
                        by the Secretary, including--
                                  ``(I) the employment of safety 
                                professionals, certified persons, and 
                                adequate numbers of personnel for the 
                                mine, as may be required by the 
                                Secretary;
                                  ``(II) specific inspection, 
                                recordkeeping, reporting and other 
                                requirements for the mine as the 
                                Secretary may establish; and
                                  ``(III) other requirements to ensure 
                                compliance and to protect the health 
                                and safety of miners or prevent 
                                accidents or injuries as the Secretary 
                                may determine are necessary.
                          ``(iii) Facilitate any effort by the 
                        Secretary to communicate directly with miners 
                        employed at the mine outside the presence of 
                        the mine operators or its agents, for the 
                        purpose of obtaining information about mine 
                        conditions, health and safety practices, or 
                        advising miners of their rights under this Act.
                  ``(B) Modification of and failure to comply with 
                remediation order.--The Secretary may modify the 
                remediation order, as necessary, to protect the health 
                and safety of miners. If the mine operator fails to 
                fully comply with the remediation order during the time 
                a mine is in pattern status, the Secretary shall 
                reinstate the withdrawal order under paragraph (2)(B).
                  ``(C) Extension of deadlines.--An extension of a 
                deadline under the remediation order may be granted on 
                a temporary basis and only upon a showing that the 
                operator took all feasible measures to comply with the 
                order and only to the extent that the operator's 
                failure to comply is beyond the control of the 
                operator.
          ``(4) Conditions for lifting a withdrawal order.--A 
        withdrawal order issued under paragraph (2)(B) shall not be 
        lifted until the Secretary verifies that--
                  ``(A) any and all violations or other conditions in 
                the mine identified in the remediation order have been 
                or are being fully abated or corrected as outlined in 
                the remediation order; and
                  ``(B) the operator has completed any other actions 
                under the remediation order that are required for 
                reopening the mine.
          ``(5) Performance evaluation.--
                  ``(A) Performance benchmarks.--The Secretary shall 
                evaluate the performance of each mine in pattern status 
                every 90 days during which the mine is producing and 
                determine if, for such 90-day period--
                          ``(i) the rate of citations at such mine for 
                        significant and substantial violations--
                                  ``(I) is in the top performing 35th 
                                percentile of such rates, respectively, 
                                for all mines of similar size and type; 
                                or
                                  ``(II) has been reduced by 70 percent 
                                from the date on which such mine was 
                                placed in pattern status, provided that 
                                the rate of such violations is not 
                                greater than the mean for all mines of 
                                similar size and type;
                          ``(ii) the accident and injury rates at such 
                        mine are in the top performing 35th percentile 
                        of such rates, respectively, for all mines of 
                        similar size and type; and
                          ``(iii) no citations or withdrawal orders for 
                        a violation under section 104(d), no withdrawal 
                        orders for imminent danger under section 107 
                        (issued in connection with a citation), and no 
                        flagrant violations within the meaning of 
                        section 110(b), were issued for such mine.
                  ``(B) Reissuance of withdrawal orders.--If an 
                operator being evaluated fails to achieve the 
                performance benchmarks described in subparagraph (A), 
                the Secretary may reissue a withdrawal order under 
                paragraph (2)(B) to remedy any recurring conditions 
                that led to pattern status under this subsection, and 
                may modify the remediation order, as necessary, to 
                protect the health and safety of miners.
          ``(6) Termination of pattern status.--
                  ``(A) Performance benchmarks.--The Secretary shall 
                remove a coal or other mine from pattern status if, for 
                a 1-year period during which the mine is producing--
                          ``(i) the rate of citations at such mine for 
                        significant and substantial violations--
                                  ``(I) is in the top performing 25th 
                                percentile of such rates, respectively, 
                                for all mines of similar size and type; 
                                or
                                  ``(II) has been reduced by 80 percent 
                                from the date on which such mine was 
                                placed in pattern status, provided that 
                                the rate of such violations is not 
                                greater than the mean for all mines of 
                                similar size and type;
                          ``(ii) the accident and injury rates at such 
                        mine are in the top performing 25th percentile 
                        of such rates, respectively, for all mines of 
                        similar size and type; and
                          ``(iii) no citations or withdrawal orders for 
                        violations under section 104(d), no withdrawal 
                        orders for imminent danger under section 107 
                        (issued in connection with a citation), and no 
                        flagrant violations within the meaning of 
                        section 110(b), were issued for such mine.
                  ``(B) Continuation of pattern status.--Should the 
                mine operator fail to meet the performance benchmarks 
                described in subparagraph (A), the Secretary shall 
                extend the mine's placement in pattern status until 
                such benchmarks are achieved.
                  ``(C) Construction.--A withdrawal order issued as the 
                result of a condition that was entirely beyond the 
                operator's ability to prevent or control shall not 
                preclude the operator from being removed from pattern 
                status, provided the operator did not cause or allow 
                miners to be exposed to the condition in violation of 
                any provision of this Act or a mandatory health or 
                safety standard or regulation promulgated under this 
                Act.
          ``(7) Expedited review.--If any order under this subsection 
        is contested, the review of such order shall be conducted on an 
        expedited basis, in accordance with section 105(d).
          ``(8) Regulations.--
                  ``(A) In general.--Not later than 120 days after the 
                date of enactment of the Robert C. Byrd Miner Safety 
                and Health Act of 2010, the Secretary shall issue 
                interim final regulations that shall define--
                          ``(i) the threshold benchmarks to trigger 
                        pattern status under paragraph (1) and cause a 
                        withdrawal order to be issued or reissued; and
                          ``(ii) the performance benchmarks described 
                        in paragraphs (5)(A) and (6)(A).
                  ``(B) Threshold benchmarks.--In establishing 
                threshold benchmarks to trigger pattern status for 
                mines with significantly poor compliance that 
                contributes to unsafe or unhealthy conditions, the 
                Secretary--
                          ``(i) shall--
                                  ``(I) consider rates of citations and 
                                orders described in paragraph (1)(A) 
                                and rates of reportable accidents and 
                                injuries within the preceding 180-day 
                                period; and
                                  ``(II) assign appropriate weight to 
                                various types of citations, orders, 
                                accidents, injuries, or other factors; 
                                and
                          ``(ii) may include--
                                  ``(I) factors such as mine type, 
                                production levels, number of miners, 
                                hours worked by miners, number of 
                                mechanized mining units (or similar 
                                production characteristics), and the 
                                presence of a representative of miners 
                                at the mine for purposes of collective 
                                bargaining;
                                  ``(II) the mine's history of 
                                citations, violations, orders, and 
                                other enforcement actions, or rates of 
                                reportable accidents and injuries, over 
                                any period determined relevant by the 
                                Secretary; and
                                  ``(III) other factors the Secretary 
                                may determine appropriate to protect 
                                the safety and health of miners.
                  ``(C) Final regulation.--Not later than 2 years after 
                the date of enactment of the Robert C. Byrd Miner 
                Safety and Health Act of 2010, the Secretary shall 
                promulgate a final regulation implementing this 
                paragraph.
          ``(9) Public database and information.--The Secretary shall 
        establish and maintain a publically available electronic 
        database containing the data used to determine pattern status 
        for all coal or other mines which shall be updated as 
        frequently as practicable. Such database shall be searchable 
        and have the capacity to provide comparative data about the 
        health and safety at mines of similar sizes and types. The 
        Secretary shall also make publicly available--
                  ``(A) a list of all mines the Secretary places in 
                pattern status, updated within 7 days of placing an 
                additional mine in pattern status;
                  ``(B) the metrics, including percentile information, 
                used for the purposes of the performance benchmarks and 
                threshold benchmarks described in paragraphs (5), (6), 
                and (8); and
                  ``(C) guidance for the use of such metrics and 
                benchmarks to assist operators in determining the 
                performance their mines under criteria established by 
                the Secretary.
          ``(10) Operator fees for additional inspections.--
                  ``(A) Assessment and collection.--Beginning 120 days 
                after the date of enactment of the Robert C. Byrd Miner 
                Safety and Health Act of 2010, the Secretary shall 
                assess and collect fees, in accordance with this 
                paragraph, from each coal or other mine in pattern 
                status for the costs of additional inspections under 
                this subsection. The Secretary shall issue, by rule, a 
                schedule of fees to be assessed against coal or other 
                mines of varying types and sizes, and shall collect and 
                assess amounts under this paragraph based on the 
                schedule.
                  ``(B) Use.--Amounts collected as provided in 
                subparagraph (A) shall only be available to the 
                Secretary for making expenditures to carry out the 
                additional inspections required under paragraph (2)(D).
                  ``(C) Authorization of appropriations.--In addition 
                to any other amounts authorized to be appropriated 
                under this Act, there is authorized to be appropriated 
                to the Assistant Secretary for Mine Safety and Health 
                for each fiscal year in which fees are collected under 
                subparagraph (A) an amount equal to the total amount of 
                fees collected under such subparagraph during that 
                fiscal year. Such amounts are authorized to remain 
                available until expended. If on the first day of a 
                fiscal year a regular appropriation to the Commission 
                has not been enacted, the Commission shall continue to 
                collect fees (as offsetting collections) under this 
                subsection at the rate in effect during the preceding 
                fiscal year, until 5 days after the date such regular 
                appropriation is enacted.
                  ``(D) Collection and crediting of fees.--Fees 
                authorized and collected under this paragraph shall be 
                deposited and credited as offsetting collections to the 
                account providing appropriations to the Mine Safety and 
                Health Administration and shall not be collected for 
                any fiscal year except to the extent and in the amount 
                provided in advance in appropriation Acts.''.

SEC. 203. INJUNCTIVE AUTHORITY.

  Section 108(a)(2) (30 U.S.C. 818(a)(2)) is amended by striking ``a 
pattern of violation of'' and all that follows and inserting ``a course 
of conduct that in the judgment of the Secretary constitutes a 
continuing hazard to the health or safety of miners, including 
violations of this Act or of mandatory health and safety standards or 
regulations under this Act.''.

SEC. 204. REVOCATION OF APPROVAL OF PLANS.

  Section 105 (30 U.S.C. 815) is amended--
          (1) by redesignating subsection (d) as subsection (e); and
          (2) by inserting after subsection (c) the following:
  ``(d) Revocation of Approval of Plans.--
          ``(1) Revocation.--If the Secretary finds that any program or 
        plan of an operator, or part thereof, that was approved by the 
        Secretary under this Act is based on inaccurate information or 
        that circumstances that existed when such plan was approved 
        have materially changed and that continued operation of such 
        mine under such plan constitutes a hazard to the safety or 
        health of miners, the Secretary shall revoke the approval of 
        such program or plan.
          ``(2) Withdrawal orders.--Upon revocation of the approval of 
        a program or plan under subsection (a), the Secretary may 
        immediately issue an order requiring the operator to cause all 
        persons, except those persons referred to in section 104(c), to 
        be withdrawn from such mine or an area of such mine, and to be 
        prohibited from entering such mine or such area, until the 
        operator has submitted and the Secretary has approved a new 
        plan.''.

SEC. 205. CHALLENGING A DECISION TO APPROVE, MODIFY, OR REVOKE A COAL 
                    OR OTHER MINE PLAN.

  Section 105(e) (as redesignated by section 204(1)) (30 U.S.C. 815(e)) 
is amended by adding at the end the following: ``In any proceeding in 
which a party challenges the Secretary's decision to approve, modify, 
or revoke a coal or other mine plan under this Act, the Commission and 
the courts shall affirm the Secretary's decision unless the challenging 
party establishes that such decision was arbitrary, capricious, an 
abuse of discretion, or otherwise not in accordance with law.''.

SEC. 206. GAO STUDY ON MSHA MINE PLAN APPROVAL.

  Not later than 1 year after the date of enactment of this Act, the 
Comptroller General shall provide a report to Congress on the 
timeliness of the Mine Safety and Health Administration's approval of 
underground coal mines' required plans and plan amendments, including--
          (1) factors that contribute to any delays in the approval of 
        these plans; and
          (2) as appropriate, recommendations for improving timeliness 
        of plan review and for achieving prompt decisions.

                          TITLE III--PENALTIES

SEC. 301. CIVIL PENALTIES.

  (a) Technical Correction.--Section 110(a)(1) (30 U.S.C. 820(a)(1)) is 
amended by inserting ``including any regulation promulgated under this 
Act,'' after ``this Act,''.
  (b) Increased Civil Penalties During Pattern Status.--Section 110(b) 
(30 U.S.C. 820(b)) is amended by adding at the end the following:
  ``(3) Notwithstanding any other provision of this Act, an operator of 
a coal or other mine that is in pattern status under section 104(e) and 
that fails to meet the performance benchmarks set forth by the 
Secretary under section 104(e)(5)(A) during any performance review of 
the mine following the first performance review shall be assessed an 
increased civil penalty for any violation of this Act, including any 
mandatory health or safety standard or regulation promulgated under 
this Act. Such increased penalty shall be twice the amount that would 
otherwise be assessed for the violation under this Act, including the 
regulations promulgated under this Act, subject to the maximum civil 
penalty established for the violation under this Act. This paragraph 
shall apply to violations at such mine that occur during the time 
period after the operator fails to meet the performance benchmarks in 
this paragraph, and ending when the Secretary determines at a 
subsequent performance review that the mine meets the performance 
benchmarks under section 104(e)(5)(A).''.
  (c) Civil Penalty for Retaliation.--Section 110(a) (30 U.S.C. 820(a)) 
is further amended--
          (1) by redesignating paragraph (4) as paragraph (5); and
          (2) by inserting after paragraph (3) the following:
  ``(4) If any person violates section 105(c), the Secretary shall 
propose, and the Commission shall assess, a civil penalty of not less 
than $10,000 or more than $100,000 for the first occurrence of such 
violation, and not less than $20,000 or more than $200,000 for any 
subsequent violation, during any 3-year period.''.

SEC. 302. CIVIL AND CRIMINAL LIABILITY OF OFFICERS, DIRECTORS, AND 
                    AGENTS.

  Section 110(c) (30 U.S.C. 820(c)) is amended to read as follows:
  ``(c) Civil and Criminal Liability of Officers, Directors, and 
Agents.--Whenever an operator violates a provision of this Act, 
including any mandatory health or safety standard or regulation 
promulgated under this Act, or knowingly violates or fails or refuses 
to comply with any order issued under this Act or any order 
incorporated in a final decision issued under this Act, any director, 
officer, or agent of such operator who knowingly authorized, ordered, 
or carried out such violation, failure, or refusal, or any policy or 
practice that resulted in such violation, failure, or refusal, shall be 
subject to the same civil penalties, fines, and imprisonment that may 
be imposed upon a person under this section.''.

SEC. 303. CRIMINAL PENALTIES.

  (a) In General.--Section 110(d) (30 U.S.C. 820(d)) is amended--
          (1) by inserting ``(1)'' before ``Any operator'';
          (2) by striking ``willfully'' and inserting ``knowingly''; 
        and
          (3) by striking ``by a fine of not more than'' and all that 
        follows and inserting ``as follows:
          ``(A) By a fine of not more than $250,000, or by imprisonment 
        for not more than 1 year, or both.
          ``(B) If the conviction is for a violation committed after a 
        previous conviction of such operator for a violation of the 
        same mandatory health or safety standard, by a fine of not more 
        than $1,000,000, or by imprisonment for not more than 5 years, 
        or both.
          ``(C) If the conviction is for a violation committed after a 
        previous conviction of such operator for a violation of an 
        order, by a fine of not more than $1,000,000, or by 
        imprisonment for not more than 5 years, or both.
          ``(D) If the operator's actions knowingly exposed miners to a 
        significant risk of serious injury or illness or death, by a 
        fine of not more than $1,000,000, or by imprisonment for not 
        more than 5 years, or both.
          ``(E) If the operator knowingly tampered with or disabled a 
        required safety device which exposed miners to a significant 
        risk of serious injury or illness or death, or if the 
        conviction is for a violation described in subparagraph (D) 
        committed after a previous conviction of such operator for a 
        such a violation, by a fine of not more than $2,000,000, or by 
        imprisonment for not more than 10 years, or both.''.
  (b) Criminal Penalty for Retaliation.--Section 110(d) (as amended by 
subsection (a)) is further amended by adding at the end the following:
  ``(2) Whoever knowingly takes any action that is directly or 
indirectly harmful to any person, including action that interferes with 
the lawful employment or livelihood of any person, because such person 
has provided an authorized representative of the Secretary, a State or 
local mine safety or health officer or official, or any other law 
enforcement officer with any information related to the existence of a 
health or safety violation or an unhealthful or unsafe condition, 
policy, or practice under this Act shall be fined under title 18, 
United States Code, imprisoned for not more than 10 years, or both.''.
  (c) Advance Notice of Inspections.--
          (1) In general.--Section 110(e) (30 U.S.C. 820(e)) is amended 
        to read as follows:
  ``(e) Unless otherwise authorized by this Act, any person that 
knowingly gives, causes to give, or attempts to give or cause to give, 
advance notice of any inspection conducted under this Act with the 
intention of impeding, interfering with, or adversely affecting the 
results of such inspection, shall be fined under title 18, United 
States Code, imprisoned for not more than 5 years, or both.''.
          (2) Posting of advance notice penalties.--Section 109 (30 
        U.S.C. 819) is amended by adding at the end the following:
  ``(e) Posting of Advance Notice Penalties.--Each operator of a coal 
or other mine shall post, on the bulletin board described in subsection 
(a) and in a conspicuous place near each staffed entrance onto the mine 
property, a notice stating, in a form and manner to be prescribed by 
the Secretary--
          ``(1) that giving, causing to give, or attempting to give or 
        cause to give advance notice of any inspection to be conducted 
        under this Act with the intention of impeding, interfering 
        with, or adversely affecting the results of such inspection is 
        unlawful pursuant to section 110(e); and
          ``(2) the maximum penalties for a violation under such 
        subsection.''.

SEC. 304. COMMISSION REVIEW OF PENALTY ASSESSMENTS.

  Section 110(i) (30 U.S.C. 820(i)) is amended by striking ``In 
assessing civil monetary penalties, the Commission shall consider'' and 
inserting the following: ``In any review of a citation and proposed 
penalty assessment contested by an operator, the Commission shall 
assess not less than the penalty derived by using the same methodology 
(including any point system) prescribed in regulations under this Act, 
so as to ensure consistency in operator penalty assessments, except 
that the Commission may assess a penalty for less than the amount that 
would result from the utilization of such methodology if the Commission 
finds that there are extraordinary circumstances. If there is no such 
methodology prescribed for a citation or there are such extraordinary 
circumstances, the Commission shall assess the penalty by 
considering''.

SEC. 305. DELINQUENT PAYMENTS AND PREJUDGMENT INTEREST.

  (a) Pre-Final Order Interest.--Section 110(j) (30 U.S.C. 820(j)) is 
amended by striking the second and third sentences and inserting the 
following: ``Pre-final order interest on such penalties shall begin to 
accrue on the date the operator contests a citation issued under this 
Act, including any mandatory health or safety standard or regulation 
promulgated under this Act, and shall end upon the issuance of the 
final order. Such pre-final order interest shall be calculated at the 
current underpayment rate determined by the Secretary of the Treasury 
pursuant to section 6621 of the Internal Revenue Code of 1986, and 
shall be compounded daily. Post-final order interest shall begin to 
accrue 30 days after the date a final order of the Commission or the 
court is issued, and shall be charged at the rate of 8 percent per 
annum.''.
  (b) Ensuring Payment of Penalties.--
          (1) Amendments.--Section 110 (30 U.S.C. 820) is further 
        amended--
                  (A) by redesignating subsection (l) as subsection 
                (m); and
                  (B) by inserting after subsection (k) the following:
  ``(l) Ensuring Payment of Penalties.--
          ``(1) Delinquent payment letter.--If the operator of a coal 
        or other mine fails to pay any civil penalty assessment that 
        has become a final order of the Commission or a court within 45 
        days after such assessment became a final order, the Secretary 
        shall send the operator a letter advising the operator of the 
        consequences under this subsection of such failure to pay. The 
        letter shall also advise the operator of the opportunity to 
        enter into or modify a payment plan with the Secretary based 
        upon a demonstrated inability to pay, the procedure for 
        entering into such plan, and the consequences of not entering 
        into or not complying with such plan.
          ``(2) Withdrawal orders following failure to pay.--If an 
        operator that receives a letter under paragraph (1) has not 
        paid the assessment by the date that is 180 days after such 
        assessment became a final order and has not entered into a 
        payment plan with the Secretary, the Secretary shall issue an 
        order requiring such operator to cause all persons, except 
        those referred to in section 104(c), to be withdrawn from, and 
        to be prohibited from entering, the mine that is covered by the 
        final order described in paragraph (1), until the operator pays 
        such assessment in full (including interest and administrative 
        costs) or enters into a payment plan with the Secretary. If 
        such operator enters into a payment plan with the Secretary and 
        at any time fails to comply with the terms specified in such 
        payment plan, the Secretary shall issue an order requiring such 
        operator to cause all persons, except those referred to in 
        section 104(c), to be withdrawn from the mine that is covered 
        by such final order, and to be prohibited from entering such 
        mine, until the operator rectifies the noncompliance with the 
        payment plan in the manner specified in such payment plan.''.
          (2) Applicability and effective date.--The amendments made by 
        paragraph (1) shall apply to all unpaid civil penalty 
        assessments under the Federal Mine Safety and Health Act of 
        1977 (30 U.S.C. 801 et seq.), except that, for any unpaid civil 
        penalty assessment that became a final order of the Commission 
        or a court before the date of enactment of this Act, the time 
        periods under section 110(n) of the Federal Mine Safety and 
        Health Act of 1977 (as amended) (30 U.S.C. 820(n)) shall be 
        calculated as beginning on the date of enactment of this Act 
        instead of on the date of the final order.

                TITLE IV--WORKER RIGHTS AND PROTECTIONS

SEC. 401. PROTECTION FROM RETALIATION.

  Section 105(c) (30 U.S.C. 815(c)) is amended to read as follows:
  ``(c) Protection From Retaliation.--
          ``(1) Retaliation prohibited.--
                  ``(A) Retaliation for complaint or testimony.--No 
                person shall discharge or in any manner discriminate 
                against or cause to be discharged or cause 
                discrimination against or otherwise interfere with the 
                exercise of the statutory rights of any miner or other 
                employee of an operator, representative of miners, or 
                applicant for employment, because--
                          ``(i) such miner or other employee, 
                        representative, or applicant for employment--
                                  ``(I) has filed or made a complaint, 
                                or is about to file or make a 
                                complaint, including a complaint 
                                notifying the operator or the 
                                operator's agent, or the representative 
                                of the miners at the coal or other mine 
                                of an alleged danger or safety or 
                                health violation in a coal or other 
                                mine;
                                  ``(II) instituted or caused to be 
                                instituted, or is about to institute or 
                                cause to be instituted, any proceeding 
                                under or related to this Act or has 
                                testified or is about to testify in any 
                                such proceeding or because of the 
                                exercise by such miner or other 
                                employee, representative, or applicant 
                                for employment on behalf of him or 
                                herself or others of any right afforded 
                                by this Act, or has reported any injury 
                                or illness to an operator or agent;
                                  ``(III) has testified or is about to 
                                testify before Congress or any Federal 
                                or State proceeding related to safety 
                                or health in a coal or other mine; or
                                  ``(IV) refused to violate any 
                                provision of this Act, including any 
                                mandatory health and safety standard or 
                                regulation; or
                          ``(ii) such miner is the subject of medical 
                        evaluations and potential transfer under a 
                        standard published pursuant to section 101.
                  ``(B) Retaliation for refusal to perform duties.--
                          ``(i) In general.--No person shall discharge 
                        or in any manner discriminate against a miner 
                        or other employee of an operator for refusing 
                        to perform the miner's or other employee's 
                        duties if the miner or other employee has a 
                        good-faith and reasonable belief that 
                        performing such duties would pose a safety or 
                        health hazard to the miner or other employee or 
                        to any other miner or employee.
                          ``(ii) Standard.--For purposes of clause (i), 
                        the circumstances causing the miner's or other 
                        employee's good-faith belief that performing 
                        such duties would pose a safety or health 
                        hazard shall be of such a nature that a 
                        reasonable person, under the circumstances 
                        confronting the miner or other employee, would 
                        conclude that there is such a hazard. In order 
                        to qualify for protection under this paragraph, 
                        the miner or other employee, when practicable, 
                        shall have communicated or attempted to 
                        communicate the safety or health concern to the 
                        operator and have not received from the 
                        operator a response reasonably calculated to 
                        allay such concern.
          ``(2) Complaint.--Any miner or other employee or 
        representative of miners or applicant for employment who 
        believes that he or she has been discharged, disciplined, or 
        otherwise discriminated against by any person in violation of 
        paragraph (1) may file a complaint with the Secretary alleging 
        such discrimination not later than 180 days after the later 
        of--
                  ``(A) the last date on which an alleged violation of 
                paragraph (1) occurs; or
                  ``(B) the date on which the miner or other employee 
                or representative knows or should reasonably have known 
                that such alleged violation occurred.
          ``(3) Investigation and hearing.--
                  ``(A) Commencement of investigation and initial 
                determination.--Upon receipt of such complaint, the 
                Secretary shall forward a copy of the complaint to the 
                respondent, and shall commence an investigation within 
                15 days of the Secretary's receipt of the complaint, 
                and, as soon as practicable after commencing such 
                investigation, make the determination required under 
                subparagraph (B) regarding the reinstatement of the 
                miner or other employee.
                  ``(B) Reinstatement.--If the Secretary finds that 
                such complaint was not frivolously brought, the 
                Commission, on an expedited basis upon application of 
                the Secretary, shall order the immediate reinstatement 
                of the miner or other employee until there has been a 
                final Commission order disposing of the underlying 
                complaint of the miner or other employee. If either the 
                Secretary or the miner or other employee pursues the 
                underlying complaint, such reinstatement shall remain 
                in effect until the Commission has disposed of such 
                complaint on the merits, regardless of whether the 
                Secretary pursues such complaint by filing a complaint 
                under subparagraph (D) or the miner or other employee 
                pursues such complaint by filing an action under 
                paragraph (4). If neither the Secretary nor the miner 
                or other employee pursues the underlying complaint 
                within the periods specified in paragraph (4), such 
                reinstatement shall remain in effect until such time as 
                the Commission may, upon motion of the operator and 
                after providing notice and an opportunity to be heard 
                to the parties, vacate such complaint for failure to 
                prosecute.
                  ``(C) Investigation.--Such investigation shall 
                include interviewing the complainant and--
                          ``(i) providing the respondent an opportunity 
                        to submit to the Secretary a written response 
                        to the complaint and to present statements from 
                        witnesses or provide evidence; and
                          ``(ii) providing the complainant an 
                        opportunity to receive any statements or 
                        evidence provided to the Secretary and rebut 
                        any statements or evidence.
                  ``(D) Action by the secretary.--If, upon such 
                investigation, the Secretary determines that the 
                provisions of this subsection have been violated, the 
                Secretary shall immediately file a complaint with the 
                Commission, with service upon the alleged violator and 
                the miner or other employee or representative of miners 
                alleging such discrimination or interference and 
                propose an order granting appropriate relief.
                  ``(E) Action of the commission.--The Commission shall 
                afford an opportunity for a hearing (in accordance with 
                section 554 of title 5, United States Code, but without 
                regard to subsection (a)(3) of such section) and 
                thereafter shall issue an order, based upon findings of 
                fact, affirming, modifying, or vacating the Secretary's 
                proposed order, or directing other appropriate relief. 
                Such order shall become final 30 days after its 
                issuance. The complaining miner or other employee, 
                representative, or applicant for employment may present 
                additional evidence on his or her own behalf during any 
                hearing held pursuant to this paragraph.
                  ``(F) Relief.--The Commission shall have authority in 
                such proceedings to require a person committing a 
                violation of this subsection to take such affirmative 
                action to abate the violation and prescribe a remedy as 
                the Commission considers appropriate, including--
                          ``(i) the rehiring or reinstatement of the 
                        miner or other employee with back pay and 
                        interest and without loss of position or 
                        seniority, and restoration of the terms, 
                        rights, conditions, and privileges associated 
                        with the complainant's employment;
                          ``(ii) any other compensatory and 
                        consequential damages sufficient to make the 
                        complainant whole, and exemplary damages where 
                        appropriate; and
                          ``(iii) expungement of all warnings, 
                        reprimands, or derogatory references that have 
                        been placed in paper or electronic records or 
                        databases of any type relating to the actions 
                        by the complainant that gave rise to the 
                        unfavorable personnel action, and, at the 
                        complainant's direction, transmission of a copy 
                        of the decision on the complaint to any person 
                        whom the complainant reasonably believes may 
                        have received such unfavorable information.
          ``(4) Notice to and action of complainant.--
                  ``(A) Notice to complainant.--Not later than 90 days 
                of the receipt of a complaint filed under paragraph 
                (2), the Secretary shall notify, in writing, the miner 
                or other employee, applicant for employment, or 
                representative of miners of his determination whether a 
                violation has occurred.
                  ``(B) Action of complainant.--If the Secretary, upon 
                investigation, determines that the provisions of this 
                subsection have not been violated, the complainant 
                shall have the right, within 30 days after receiving 
                notice of the Secretary's determination, to file an 
                action in his or her own behalf before the Commission, 
                charging discrimination or interference in violation of 
                paragraph (1).
                  ``(C) Hearing and decision.--The Commission shall 
                afford an opportunity for a hearing (in accordance with 
                section 554 of title 5, United States Code, but without 
                regard to subsection (a)(3) of such section), and 
                thereafter shall issue an order, based upon findings of 
                fact, dismissing or sustaining the complainant's 
                charges and, if the charges are sustained, granting 
                such relief as it deems appropriate as described in 
                paragraph (3)(D). Such order shall become final 30 days 
                after its issuance.
          ``(5) Burden of proof.--In adjudicating a complaint pursuant 
        to this subsection, the Commission may determine that a 
        violation of paragraph (1) has occurred only if the complainant 
        demonstrates that any conduct described in paragraph (1) with 
        respect to the complainant was a contributing factor in the 
        adverse action alleged in the complaint. A decision or order 
        that is favorable to the complainant shall not be issued 
        pursuant to this subsection if the respondent demonstrates by 
        clear and convincing evidence that the respondent would have 
        taken the same adverse action in the absence of such conduct.
          ``(6) Attorneys' fees.--Whenever an order is issued 
        sustaining the complainant's charges under this subsection, a 
        sum equal to the aggregate amount of all costs and expenses, 
        including attorney's fees, as determined by the Commission to 
        have been reasonably incurred by the complainant for, or in 
        connection with, the institution and prosecution of such 
        proceedings shall be assessed against the person committing 
        such violation. The Commission shall determine whether such 
        costs and expenses were reasonably incurred by the complainant 
        without reference to whether the Secretary also participated in 
        the proceeding.
          ``(7)  Expedited proceedings; judicial review.--Proceedings 
        under this subsection shall be expedited by the Secretary and 
        the Commission. Any order issued by the Commission under this 
        subsection shall be subject to judicial review in accordance 
        with section 106. Violations by any person of paragraph (1) 
        shall be subject to the provisions of sections 108 and 
        110(a)(4).
          ``(8)  Procedural rights.--The rights and remedies provided 
        for in this subsection may not be waived by any agreement, 
        policy, form, or condition of employment, including by any pre-
        dispute arbitration agreement or collective bargaining 
        agreement.
          ``(9) Savings.--Nothing in this subsection shall be construed 
        to diminish the rights, privileges, or remedies of any employee 
        who exercises rights under any Federal or State law or common 
        law, or under any collective bargaining agreement.''.

SEC. 402. PROTECTION FROM LOSS OF PAY.

  Section 111 (30 U.S.C. 821) is amended to read as follows:

``SEC. 111. ENTITLEMENT OF MINERS.

  ``(a) Protection From Loss of Pay.--
          ``(1) Withdrawal orders.--If a coal or other mine or area of 
        such mine is closed by an order issued under section 103, 104, 
        107, 108, or 110, all miners working during the shift when such 
        order was issued who are idled by such order shall be entitled, 
        regardless of the result of any review of such order, to full 
        compensation by the operator at their regular rates of pay for 
        the period they are idled, but for not more than the balance of 
        such shift. If such order is not terminated prior to the next 
        working shift, all miners on that shift who are idled by such 
        order shall be entitled to full compensation by the operator at 
        their regular rates of pay for the period they are idled, but 
        for not more than four hours of such shift. If a coal or other 
        mine or area of such mine is closed by an order issued under 
        section 104, 107 (in connection with a citation), 108, or 110, 
        all miners who are idled by such order shall be entitled, 
        regardless of the result of any review of such order, to full 
        compensation by the operator at their regular rates of pay and 
        in accordance with their regular schedules of pay for the 
        entire period for which they are idled, not to exceed 60 days.
          ``(2) Closure in advance of order.--If the Secretary finds 
        that such mine or such area of a mine was closed by the 
        operator in anticipation of the issuance of such an order, all 
        miners who are idled by such closure shall be entitled to full 
        compensation by the operator at their regular rates of pay and 
        in accordance with their regular schedules of pay, from the 
        time of such closure until such time as the Secretary 
        authorizes reopening of such mine or such area of the mine, not 
        to exceed 60 days, except where an operator promptly withdraws 
        miners upon discovery of a hazard, and notifies the Secretary 
        where required, and within the prescribed time period.
          ``(3) Refusal to comply.--Whenever an operator violates or 
        fails or refuses to comply with any order issued under section 
        103, 104, 107, 108, or 110, all miners employed at the affected 
        mine who would have been withdrawn from, or prevented from 
        entering, such mine or area thereof as a result of such order 
        shall be entitled to full compensation by the operator at their 
        regular rates of pay, in addition to pay received for work 
        performed after such order was issued, for the period beginning 
        when such order was issued and ending when such order is 
        complied with, vacated, or terminated.
  ``(b) Enforcement.--
          ``(1) Commission orders.--The Commission shall have authority 
        to order compensation due under this section upon the filing of 
        a complaint by a miner or his representative and after 
        opportunity for hearing subject to section 554 of title 5, 
        United States Code. Whenever the Commission issues an order 
        sustaining the complaint under this subsection in whole or in 
        part, the Commission shall award the complainant reasonable 
        attorneys' fees and costs.
          ``(2) Failure to pay compensation due.--Consistent with the 
        authority of the Secretary to order miners withdrawn from a 
        mine under this Act, the Secretary shall order a mine that has 
        been subject to a withdrawal order under section 103, 104, 107, 
        108, or 110, and has reopened, to be closed again if 
        compensation in accordance with the provisions of this section 
        is not paid by the end of the next regularly scheduled payroll 
        period following the lifting of a withdrawal order.
  ``(c) Expedited Review.--If an order is issued which results in 
payments to miners under subsection (a), the operators shall have the 
right to an expedited review before the Commission using timelines and 
procedures established pursuant to section 316(b)(2)(G)(ii).''.

SEC. 403. UNDERGROUND COAL MINER EMPLOYMENT STANDARD FOR MINES PLACED 
                    IN PATTERN STATUS.

  The Federal Mine Safety and Health Act of 1977 is further amended by 
adding at the end of title I the following:

``SEC. 117. UNDERGROUND COAL MINER EMPLOYMENT STANDARD FOR MINES PLACED 
                    IN PATTERN STATUS.

  ``(a) In General.-- For purposes of ensuring miners' health and 
safety and miners' right to raise concerns thereof, when an underground 
coal mine is placed in pattern status pursuant to section 104(e), and 
for 3 years after such placement, the operator of such mine may not 
discharge or constructively discharge a miner who is paid on an hourly 
basis and employed at such underground coal mine without reasonable 
job-related grounds based on a failure to satisfactorily perform job 
duties, including compliance with this Act and with mandatory health 
and safety standards or other regulations issued under this Act, or 
other legitimate business reason, where the miner has completed the 
employer's probationary period, not to exceed 6 months.
  ``(b) Cause of Action.--A miner aggrieved by a violation of 
subsection (a) may file a complaint in Federal district court in the 
district where the mine is located within 1 year of such violation.
  ``(c) Remedies.--In an action under subsection (b), for any 
prevailing miner the court shall take affirmative action to further the 
purposes of the Act, which may include reinstatement with backpay and 
compensatory damages. Reasonable attorneys' fees and costs shall be 
awarded to any prevailing miner under this section.
  ``(d) Pre-Dispute Waiver Prohibited.--A miner's right to a cause of 
action under this section may not be waived with respect to disputes 
that have not arisen as of the time of the waiver.
  ``(e) Construction.--Nothing in this section shall be construed to 
limit the availability of rights and remedies of miners under any other 
State or Federal law or a collective bargaining agreement.''.

            TITLE V--MODERNIZING HEALTH AND SAFETY STANDARDS

SEC. 501. PRE-SHIFT REVIEW OF MINE CONDITIONS.

  Section 303(d) (30 U.S.C. 863(d)) is amended by adding at the end the 
following:
  ``(3)(A) Not later than 30 days after the issuance of the interim 
final rules promulgated under subparagraph (C), each operator of an 
underground coal mine shall implement a communication program at the 
underground coal mine to ensure that each miner is orally briefed on 
and made aware of, prior to traveling to or arriving at the miner's 
work area and commencing the miner's assigned tasks--
          ``(i) any conditions that are hazardous, or that violate a 
        mandatory health or safety standard or a plan approved under 
        this Act, where the miner is expected to work or travel; and
          ``(ii) the general conditions of that miner's assigned 
        working section or other area where the miner is expected to 
        work or travel.
  ``(B) Not later than 180 days after the date of enactment of the 
Robert C. Byrd Miner Safety and Health Act of 2010, the Secretary shall 
promulgate interim final rules implementing the requirements of 
subparagraph (A). The Secretary shall issue a final rule not later than 
2 years after such date.''.

SEC. 502. ROCK DUST STANDARDS.

  (a) Standards.--Section 304(d) (30 U.S.C. 864(d)) is amended--
          (1) by striking ``Where rock'' and inserting the following: 
        ``Rock Dust.--
          ``(1) In general.--Where rock'';
          (2) by striking ``65 per centum'' and all that follows and 
        inserting ``80 percent. Where methane is present in any 
        ventilating current, the percentage of incombustible content of 
        such combined dusts shall be increased 0.4 percent for each 0.1 
        percent of methane.''; and
          (3) by adding at the end the following:
          ``(2) Methods of measurement.--
                  ``(A) In general.--Each operator of an underground 
                coal mine shall take accurate and representative 
                samples which shall measure the total incombustible 
                content of combined coal dust, rock dust, and other 
                dust in such mine to ensure that the coal dust is kept 
                below explosive levels through the appropriate 
                application of rock dust.
                  ``(B) Direct reading monitors.--By the later of June 
                15, 2011, or the date that is 30 days after the 
                Secretary of Health and Human Services has certified in 
                writing that direct reading monitors are commercially 
                available to measure total incombustible content in 
                samples of combined coal dust, rock dust, and other 
                dust and the Department of Labor has approved such 
                monitors for use in underground coal mines, the 
                Secretary shall require operators to take such dust 
                samples using direct reading monitors.
                  ``(C) Regulations.--The Secretary shall, not later 
                than 180 days after the date of enactment of the Robert 
                C. Byrd Miner Safety and Health Act of 2010, promulgate 
                an interim final rule that prescribes methods for 
                operator sampling of total incombustible content in 
                samples of combined coal dust, rock dust, and other 
                dust using direct reading monitors and includes 
                requirements for locations, methods, and intervals for 
                mandatory operator sampling.
                  ``(D) Recommendations.--Not later than 1 year after 
                the date of enactment of the Robert C. Byrd Miner 
                Safety and Health Act of 2010, the Secretary of Health 
                and Human Services shall, based upon the latest 
                research, recommend to the Secretary of Labor any 
                revisions to the mandatory operator sampling locations, 
                methods, and intervals included in the interim final 
                rule described in subparagraph (B) that may be 
                warranted in light of such research.
          ``(3) Limitation.--Until a final rule is issued by the 
        Secretary under section 502(b)(2) of the Robert C. Byrd Miner 
        Safety and Health Act of 2010, any measurement taken by a 
        direct reading monitor described in paragraph (2) shall not be 
        admissible to establish a violation in an enforcement action 
        under this Act.''.
  (b) Report and Rulemaking Authority.--
          (1) Report.--Not later than 2 years after the date of 
        enactment of this Act, the Secretary of Health and Human 
        Services, in consultation with the Secretary of Labor, shall 
        prepare and submit, to the Committee on Education and Labor of 
        the House of Representatives and the Committee on Health, 
        Education, Labor, and Pensions of the Senate, a report--
                  (A) regarding whether any direct reading monitor 
                described in section 304(d)(2)(B) of the Federal Mine 
                Safety and Health Act of 1977 (30 U.S.C. 864(d)(2)(B)) 
                is sufficiently reliable and accurate for the 
                enforcement of the mandatory health or safety standards 
                by the Secretary of Labor under such Act, and whether 
                additional improvement to such direct reading monitor, 
                or additional verification regarding reliability and 
                accuracy, would be needed for enforcement purposes; and
                  (B) identifying any limitations or impediments for 
                such use in underground coal mines.
          (2) Authority.--If the Secretary determines that such direct 
        reading monitor is sufficiently reliable and accurate for the 
        enforcement of mandatory health and safety standards under the 
        Federal Mines Safety and Health Act of 1977 following such 
        report or any update thereto, the Secretary shall promulgate a 
        final rule authorizing the use of such direct reading monitor 
        for purposes of compliance and enforcement, in addition to 
        other methods for determining total incombustible content. Such 
        rule shall specify mandatory operator sampling locations, 
        methods, and intervals.

SEC. 503. ATMOSPHERIC MONITORING SYSTEMS.

  Section 317 (30 U.S.C. 877) is amended by adding at the end the 
following:
  ``(u) Atmospheric Monitoring Systems.--
          ``(1) NIOSH recommendations.--Not later than 1 year after the 
        date of enactment of the Robert C. Byrd Miner Safety and Health 
        Act of 2010, the Director of the National Institute for 
        Occupational Safety and Health, acting through the Office of 
        Mine Safety and Health Research, in consultation, including 
        through technical working groups, with operators, vendors, 
        State mine safety agencies, the Secretary, and labor 
        representatives of miners, shall issue recommendations to the 
        Secretary regarding--
                  ``(A) how to ensure that atmospheric monitoring 
                systems are utilized in the underground coal mining 
                industry to maximize the health and safety of 
                underground coal miners;
                  ``(B) the implementation of redundant systems, such 
                as the bundle tubing system, that can continuously 
                monitor the mine atmosphere following incidents such as 
                fires, explosions, entrapments, and inundations; and
                  ``(C) other technologies available to conduct 
                continuous atmospheric monitoring.
          ``(2) Atmospheric monitoring system regulations.--Not later 
        than 1 year following the receipt of the recommendations 
        described in paragraph (1), the Secretary shall promulgate 
        regulations requiring that each operator of an underground coal 
        mine install atmospheric monitoring systems, consistent with 
        such recommendations, that--
                  ``(A) protect miners where the miners normally work 
                and travel;
                  ``(B) provide real-time information regarding methane 
                and carbon monoxide levels, and airflow direction, as 
                appropriate, with sensing, annunciating, and recording 
                capabilities; and
                  ``(C) can, to the maximum extent practicable, 
                withstand explosions and fires.''.

SEC. 504. TECHNOLOGY RELATED TO RESPIRABLE DUST.

  Section 202(d) (30 U.S.C. 842(d)) is amended--
          (1) by striking ``of Health, Education, and Welfare''; and
          (2) by striking the second sentence and inserting the 
        following: ``Not later than 2 years after the date of enactment 
        of the Robert C. Byrd Miner Safety and Health Act of 2010, the 
        Secretary shall promulgate final regulations that require 
        operators, beginning on the date such regulations are issued, 
        to provide coal miners with the maximum feasible protection 
        from respirable dust, including coal and silica dust, that is 
        achievable through environmental controls, and that meet the 
        applicable standards.''.

SEC. 505. REFRESHER TRAINING ON MINER RIGHTS AND RESPONSIBILITIES.

  (a) In General.--Section 115(a)(3) (30 U.S.C. 825(a)(3)) is amended 
to read as follows:
          ``(3) all miners shall receive not less than 9 hours of 
        refresher training not less frequently than once every 12 
        months, and such training shall include one hour of training on 
        the statutory rights and responsibilities of miners and their 
        representatives under this Act and other applicable Federal and 
        State law, pursuant to a program of instruction developed by 
        the Secretary and delivered by an employee of the 
        Administration or by a trainer approved by the Administration 
        that is a party independent from the operator;''.
  (b) National Hazard Reporting Hotline.--Section 115 (30 U.S.C. 825) 
is further amended--
          (1) by redesignating subsections (c) through (e) as 
        subsections (d) through (f), respectively; and
          (2) by inserting after subsection (b) the following:
  ``(c) Any health and safety training program of instruction provided 
under this section shall include distribution to miners of information 
regarding miners' rights under the Act, as well as a toll-free hotline 
telephone number, which the Secretary shall maintain to receive 
complaints from miners and the public regarding hazardous conditions, 
discrimination, safety or health violations, or other mine safety or 
health concerns. Information regarding the hotline shall be provided in 
a portable, convenient format, such as a durable wallet card, to enable 
miners to keep the information on their person.''.
  (c) Timing of Initial Statutory Rights Training.--Notwithstanding 
section 115 of the Federal Mine Safety and Health Act (as amended by 
subsection (a)) (30 U.S.C. 825) or the health and safety training 
program approved under such section, an operator shall ensure that all 
miners already employed by the operator on the date of enactment of 
this Act shall receive the one hour of statutory rights and 
responsibilities training described in section 115(a)(3) of such Act 
not later than 180 days after such date.

SEC. 506. AUTHORITY TO MANDATE ADDITIONAL TRAINING.

  (a) In General.--Section 115 (30 U.S.C. 825) is further amended by 
redesignating subsections (e) and (f) (as redesignated) as subsections 
(f) and (g) and inserting after subsection (d) (as redesignated) the 
following:
  ``(e) Authority To Mandate Additional Training.--
          ``(1) In general.--The Secretary is authorized to issue an 
        order requiring that an operator of a coal or other mine 
        provide additional training beyond what is otherwise required 
        by law, and specifying the time within which such training 
        shall be provided, if the Secretary finds that--
                  ``(A)(i) a serious or fatal accident has occurred at 
                such mine; or
                  ``(ii) such mine has experienced accident and injury 
                rates, citations for violations of this Act (including 
                mandatory health or safety standards or regulations 
                promulgated under this Act), citations for significant 
                and substantial violations, or withdrawal orders issued 
                under this Act at a rate above the average for mines of 
                similar size and type; and
                  ``(B) additional training would benefit the health 
                and safety of miners at the mine.
          ``(2) Withdrawal order.--If the operator fails to provide 
        training ordered under paragraph (1) within the specified time, 
        the Secretary shall issue an order requiring such operator to 
        cause all affected persons, except those persons referred to in 
        section 104(c), to be withdrawn, and to be prohibited from 
        entering such mine, until such operator has provided such 
        training.''.
  (b) Conforming Amendments.--Section 104(g)(2) (30 U.S.C. 814(g)(2)) 
is amended by striking ``under paragraph (1)'' both places it appears 
and inserting ``under paragraph (1) or under section 115(e)''.

SEC. 507. CERTIFICATION OF PERSONNEL.

  (a) In General.--Title I is further amended by adding at the end the 
following:

``SEC. 118. CERTIFICATION OF PERSONNEL.

  ``(a) Certification Required.--Any person who is authorized or 
designated by the operator of a coal or other mine to perform any 
duties or provide any training that this Act, including a mandatory 
health or safety standard or regulation promulgated pursuant to this 
Act, requires to be performed or provided by a certified, registered, 
qualified, or otherwise approved person, shall be permitted to perform 
such duties or provide such training only if such person has a current 
certification, registration, qualification, or approval to perform such 
duties or provide such training consistent with the requirements of 
this section.
  ``(b) Establishment of Certification Requirements and Procedures.--
          ``(1) In general.--Not later than 1 year after the date of 
        enactment of the Robert C. Byrd Miner Safety and Health Act of 
        2010, the Secretary shall issue mandatory standards to 
        establish--
                  ``(A) requirements for such certification, 
                registration, qualification, or other approval, 
                including the experience, examinations, and references 
                that may be required as appropriate;
                  ``(B) time limits for such certifications and 
                procedures for obtaining and renewing such 
                certification, registration, qualification, or other 
                approval; and
                  ``(C) procedures and criteria for revoking such 
                certification, registration, qualification, or other 
                approval, including procedures that ensure that the 
                Secretary (or a State agency, as applicable) responds 
                to requests for revocation and that the names of 
                individuals whose certification or other approval has 
                been revoked are provided to and maintained by the 
                Secretary, and are made available to appropriate State 
                agencies through an electronic database.
          ``(2) Coordination with states.--In developing such 
        standards, the Secretary shall consult with States that have 
        miner certification programs to ensure effective coordination 
        with existing State standards and requirements for 
        certification. The standards required under paragraph (1) shall 
        provide that the certification, registration, qualification, or 
        other approval of the State in which the coal or other mine is 
        located satisfies the requirement of subsection (a) if the 
        State's program of certification, registration, qualification, 
        or other approval is no less stringent than the standards 
        established by the Secretary under paragraph (1).
  ``(c) Operator Fees for Certification.--
          ``(1) Assessment and collection.--Beginning 180 days after 
        the date of enactment of the Robert C. Byrd Miner Safety and 
        Health Act of 2010, the Secretary shall assess and collect 
        fees, in accordance with this subsection, from each operator 
        for each person certified under this section. Fees shall be 
        assessed and collected in amounts determined by the Secretary 
        as necessary to fund the certification programs established 
        under this section.
          ``(2) Use.--Amounts collected as provided in paragraph (1) 
        shall only be available to the Secretary, as provided in 
        paragraph (3), for making expenditures to carry out the 
        certification programs established under this subsection.
          ``(3) Authorization of appropriations.--In addition to funds 
        authorized to be appropriated under section 114, there is 
        authorized to be appropriated to the Assistant Secretary for 
        Mine Safety and Health for each fiscal year in which fees are 
        collected under paragraph (1) an amount equal to the total 
        amount of fees collected under paragraph (1) during that fiscal 
        year. Such amounts are authorized to remain available until 
        expended. If on the first day of a fiscal year a regular 
        appropriation to the Commission has not been enacted, the 
        Commission shall continue to collect fees (as offsetting 
        collections) under this subsection at the rate in effect during 
        the preceding fiscal year, until 5 days after the date such 
        regular appropriation is enacted.
          ``(4) Collecting and crediting of fees.--Fees authorized and 
        collected under this subsection shall be deposited and credited 
        as offsetting collections to the account providing 
        appropriations to the Mine Safety and Health Administration and 
        shall not be collected for any fiscal year except to the extent 
        and in the amount provided in advance in appropriation Acts.
  ``(d) Citation; Withdrawal Order.--Any operator who permits a person 
to perform any of the health or safety related functions described in 
subsection (a) without a current certification which meets the 
requirements of this section shall be considered to have committed an 
unwarrantable failure under section 104(d)(1), and the Secretary shall 
issue an order requiring that the miner be withdrawn or reassigned to 
duties that do not require such certification.''.
  (b) Conforming Amendments.--Section 318 (30 U.S.C. 878) is amended--
          (1) by striking subsections (a) and (b);
          (2) in subsection (c), by redesignating paragraphs (1) 
        through (3) as subparagraphs (A) through (C), respectively;
          (3) in subsection (g), by redesignating paragraphs (1) 
        through (4) as subparagraphs (A) through (D), respectively; and
          (4) by redesignating subsections (c) through (j) as 
        paragraphs (1) through (8), respectively.

              TITLE VI--ADDITIONAL MINE SAFETY PROVISIONS

SEC. 601. DEFINITIONS.

  (a) Definition of Operator.--Section 3(d) is amended to read as 
follows:
          ``(d) `operator' means--
                  ``(1) any owner, lessee, or other person that--
                          ``(A) operates or supervises a coal or other 
                        mine; or
                          ``(B) controls such mine by making or having 
                        the authority to make management or operational 
                        decisions that affect, directly or indirectly, 
                        the health or safety at such mine; or
                  ``(2) any independent contractor performing services 
                or construction at such mine;''.
  (b) Definition of Agent.--Section 3(e) (30 U.S.C. 802(e)) is amended 
by striking ``the miners'' and inserting ``any miner''.
  (c) Definition of Miner.--Section 3(g) (30 U.S.C. 802(g)) is amended 
by inserting after ``or other mine'' the following: ``, and includes 
any individual who is not currently working in a coal or other mine but 
would be currently working in such mine, but for an accident in such 
mine''.
  (d) Definition of Significant and Substantial Violations.--Section 3 
(30 U.S.C. 802) is further amended--
          (1) in subsection (m), by striking ``and'' after the 
        semicolon;
          (2) in subsection (n), by striking the period at the end and 
        inserting a semicolon;
          (3) in subsection (o), by striking the period at the end and 
        inserting ``; and''; and
          (4) by adding at the end the following:
          ``(p) `significant and substantial violation' means a 
        violation of this Act, including any mandatory health or safety 
        standard or regulation promulgated under this Act, that is of 
        such nature as could significantly and substantially contribute 
        to the cause and effect of a coal or other mine safety or 
        health hazard as described in section 104(d).''.

SEC. 602. ASSISTANCE TO STATES.

  Section 503 (30 U.S.C. 953(a)) is amended--
          (1) in subsection (a)--
                  (A) in the matter preceding paragraph (1), by 
                striking ``, in coordination with the Secretary of 
                Health, Education, and Welfare and the Secretary of the 
                Interior,'';
                  (B) in paragraph (2), by striking ``and'' after the 
                semicolon;
                  (C) in paragraph (3), by striking the period and 
                inserting ``; and''; and
                  (D) by adding at the end the following:
          ``(4) to assist such State in developing and implementing any 
        certification program for coal or other mines required for 
        compliance with section 118.''; and
          (2) in subsection (h), by striking ``$3,000,000 for fiscal 
        year 1970, and $10,000,000 annually in each succeeding fiscal 
        year'' and inserting ``$20,000,000 for each fiscal year''.

SEC. 603. BLACK LUNG MEDICAL REPORTS.

  Title IV of the Black Lung Benefits Act (30 U.S.C. 901 et seq.) is 
amended by adding at the end the following:

``SEC. 435. MEDICAL REPORTS.

  ``In any claim for benefits for a miner under this title, an operator 
that requires a miner to submit to a medical examination regarding the 
miner's respiratory or pulmonary condition shall, not later than 14 
days after the miner has been examined, deliver to the claimant a 
complete copy of the examining physician's report. The examining 
physician's report shall be in writing and shall set out in detail the 
examiner's findings, including any diagnoses and conclusions and the 
results of any diagnostic imaging techniques and tests that were 
performed on the miner.''.

SEC. 604. RULES OF APPLICATION TO CERTAIN MINES.

  (a) Inapplicability of Amendments to Certain Mines.--
          (1) Special rule.--The amendments made by this Act shall not 
        apply to--
                  (A) surface mines, except for surface facilities or 
                impoundments physically connected to--
                          (i) underground coal mines; or
                          (ii) other underground mines which are gassy 
                        mines; or
                  (B) underground mines which are neither coal mines 
                nor gassy mines.
          (2) Definition.--For purposes of this section, the term 
        ``gassy mine'' means a mine, tunnel, or other underground 
        workings in which a flammable mixture has been ignited, or has 
        been found with a permissible flame safety lamp, or has been 
        determined by air analysis to contain 0.25 percent or more (by 
        volume) of methane in any open workings when tested at a point 
        not less than 12 inches from the roof, face of rib.
  (b) Rule of Construction Relating to Applicability of Certain 
Provisions to Surface Mines.--Title I is further amended by adding at 
the end the following:

``SEC. 119. APPLICABILITY OF CERTAIN PROVISIONS TO CERTAIN MINES.

  ``(a) Rule of Construction.--With respect to the mines described in 
subsection (b), this Act as in effect on the date before the date of 
enactment of the Robert C. Byrd Miner Safety and Health Act of 2010, 
shall continue to apply to such mines as then in effect.
  ``(b) Applicable Mines.--
          ``(1) In general.--The mines referred to in subsection (a) 
        are--
                  ``(A) surface mines, except for surface facilities or 
                impoundments physically connected to--
                          ``(i) underground coal mines; or
                          ``(ii) other underground mines which are 
                        gassy mines; and
                  ``(B) underground mines which are neither coal mines 
                nor gassy mines.
          ``(2) Definition.--As used in paragraph (1), the term `gassy 
        mine' means a mine, tunnel, or other underground workings in 
        which a flammable mixture has been ignited, or has been found 
        with a permissible flame safety lamp, or has been determined by 
        air analysis to contain 0.25 percent or more (by volume) of 
        methane in any open workings when tested at a point not less 
        than 12 inches from the roof, face of rib.
  ``(c) Savings Provision.--Nothing in this section shall impact the 
authority of the Secretary to promulgate or modify regulations pursuant 
to the authority under any such provisions as in effect on the date 
before the date of enactment of the Robert C. Byrd Miner Safety and 
Health Act of 2010, or shall be construed to alter or modify precedent 
with regards to the Commission or courts.''.

    TITLE VII--AMENDMENTS TO THE OCCUPATIONAL SAFETY AND HEALTH ACT

SEC. 701. ENHANCED PROTECTIONS FROM RETALIATION.

  (a) Employee Actions.--Section 11(c)(1) of the Occupational Safety 
and Health Act of 1970 (29 U.S.C. 660(c)(1)) is amended--
          (1) by striking ``discharge'' and all that follows through 
        ``because such'' and inserting the following: ``discharge or 
        cause to be discharged, or in any manner discriminate against 
        or cause to be discriminated against, any employee because--
          ``(A) such'';
          (2) by striking ``this Act or has'' and inserting the 
        following: ``this Act;
          ``(B) such employee has'';
          (3) by striking ``in any such proceeding or because of the 
        exercise'' and inserting the following: ``before Congress or in 
        any Federal or State proceeding related to safety or health;
          ``(C) such employee has refused to violate any provision of 
        this Act; or
          ``(D) of the exercise''; and
          (4) by inserting before the period at the end the following: 
        ``, including the reporting of any injury, illness, or unsafe 
        condition to the employer, agent of the employer, safety and 
        health committee involved, or employee safety and health 
        representative involved''.
  (b) Prohibition of Retaliation.--Section 11(c) of such Act (29 U.S.C. 
660(c)) is amended by striking paragraph (2) and inserting the 
following:
          ``(2) Prohibition of retaliation.--(A) No person shall 
        discharge, or cause to be discharged, or in any manner 
        discriminate against, or cause to be discriminated against, an 
        employee for refusing to perform the employee's duties if the 
        employee has a reasonable apprehension that performing such 
        duties would result in serious injury to, or serious impairment 
        of the health of, the employee or other employees.
          ``(B) For purposes of subparagraph (A), the circumstances 
        causing the employee's good-faith belief that performing such 
        duties would pose a safety or health hazard shall be of such a 
        nature that a reasonable person, under the circumstances 
        confronting the employee, would conclude that there is such a 
        hazard. In order to qualify for protection under this 
        paragraph, the employee, when practicable, shall have 
        communicated or attempted to communicate the safety or health 
        concern to the employer and have not received from the employer 
        a response reasonably calculated to allay such concern.''.
  (c) Procedure.--Section 11(c) of such Act (29 U.S.C. 660(c)) is 
amended by striking paragraph (3) and inserting the following:
          ``(3) Complaint.--Any employee who believes that the employee 
        has been discharged, disciplined, or otherwise discriminated 
        against by any person in violation of paragraph (1) or (2) may 
        seek relief for such violation by filing a complaint with the 
        Secretary under paragraph (5).
          ``(4) Statute of limitations.--
                  ``(A) In general.--An employee may take the action 
                permitted by paragraph (3)(A) not later than 180 days 
                after the later of--
                          ``(i) the date on which an alleged violation 
                        of paragraph (1) or (2) occurs; or
                          ``(ii) the date on which the employee knows 
                        or should reasonably have known that such 
                        alleged violation occurred.
                  ``(B) Repeat violation.--Except in cases when the 
                employee has been discharged, a violation of paragraph 
                (1) or (2) shall be considered to have occurred on the 
                last date an alleged repeat violation occurred.
          ``(5) Investigation.--
                  ``(A) In general.--An employee may, within the time 
                period required under paragraph (4)(B), file a 
                complaint with the Secretary alleging a violation of 
                paragraph (1) or (2). If the complaint alleges a prima 
                facie case, the Secretary shall conduct an 
                investigation of the allegations in the complaint, 
                which--
                          ``(i) shall include--
                                  ``(I) interviewing the complainant;
                                  ``(II) providing the respondent an 
                                opportunity to--
                                          ``(aa) submit to the 
                                        Secretary a written response to 
                                        the complaint; and
                                          ``(bb) meet with the 
                                        Secretary to present statements 
                                        from witnesses or provide 
                                        evidence; and
                                  ``(III) providing the complainant an 
                                opportunity to--
                                          ``(aa) receive any statements 
                                        or evidence provided to the 
                                        Secretary;
                                          ``(bb) meet with the 
                                        Secretary; and
                                          ``(cc) rebut any statements 
                                        or evidence; and
                          ``(ii) may include issuing subpoenas for the 
                        purposes of such investigation.
                  ``(B) Decision.--Not later than 90 days after the 
                filing of the complaint, the Secretary shall--
                          ``(i) determine whether reasonable cause 
                        exists to believe that a violation of paragraph 
                        (1) or (2) has occurred; and
                          ``(ii) issue a decision granting or denying 
                        relief.
          ``(6) Preliminary order following investigation.--If, after 
        completion of an investigation under paragraph (5)(A), the 
        Secretary finds reasonable cause to believe that a violation of 
        paragraph (1) or (2) has occurred, the Secretary shall issue a 
        preliminary order providing relief authorized under paragraph 
        (14) at the same time the Secretary issues a decision under 
        paragraph (5)(B). If a de novo hearing is not requested within 
        the time period required under paragraph (7)(A)(i), such 
        preliminary order shall be deemed a final order of the 
        Secretary and is not subject to judicial review.
          ``(7) Hearing.--
                  ``(A) Request for hearing.--
                          ``(i) In general.--A de novo hearing on the 
                        record before an administrative law judge may 
                        be requested--
                                  ``(I) by the complainant or 
                                respondent within 30 days after 
                                receiving notification of a decision 
                                granting or denying relief issued under 
                                paragraph (5)(B) or paragraph (6) 
                                respectively;
                                  ``(II) by the complainant within 30 
                                days after the date the complaint is 
                                dismissed without investigation by the 
                                Secretary under paragraph (5)(A); or
                                  ``(III) by the complainant within 120 
                                days after the date of filing the 
                                complaint, if the Secretary has not 
                                issued a decision under paragraph 
                                (5)(B).
                          ``(ii) Reinstatement order.--The request for 
                        a hearing shall not operate to stay any 
                        preliminary reinstatement order issued under 
                        paragraph (6).
                  ``(B) Procedures.--
                          ``(i) In general.--A hearing requested under 
                        this paragraph shall be conducted expeditiously 
                        and in accordance with rules established by the 
                        Secretary for hearings conducted by 
                        administrative law judges.
                          ``(ii) Subpoenas; production of evidence.--In 
                        conducting any such hearing, the administrative 
                        law judge may issue subpoenas. The respondent 
                        or complainant may request the issuance of 
                        subpoenas that require the deposition of, or 
                        the attendance and testimony of, witnesses and 
                        the production of any evidence (including any 
                        books, papers, documents, or recordings) 
                        relating to the matter under consideration.
                          ``(iii) Decision.--The administrative law 
                        judge shall issue a decision not later than 90 
                        days after the date on which a hearing was 
                        requested under this paragraph and promptly 
                        notify, in writing, the parties and the 
                        Secretary of such decision, including the 
                        findings of fact and conclusions of law. If the 
                        administrative law judge finds that a violation 
                        of paragraph (1) or (2) has occurred, the judge 
                        shall issue an order for relief under paragraph 
                        (14). If review under paragraph (8) is not 
                        timely requested, such order shall be deemed a 
                        final order of the Secretary that is not 
                        subject to judicial review.
          ``(8) Administrative appeal.--
                  ``(A) In general.--Not later than 30 days after the 
                date of notification of a decision and order issued by 
                an administrative law judge under paragraph (7), the 
                complainant or respondent may file, with objections, an 
                administrative appeal with an administrative review 
                body designated by the Secretary (referred to in this 
                paragraph as the `review board').
                  ``(B) Standard of review.--In reviewing the decision 
                and order of the administrative law judge, the review 
                board shall affirm the decision and order if it is 
                determined that the factual findings set forth therein 
                are supported by substantial evidence and the decision 
                and order are made in accordance with applicable law.
                  ``(C) Decisions.--If the review board grants an 
                administrative appeal, the review board shall issue a 
                final decision and order affirming or reversing, in 
                whole or in part, the decision under review by not 
                later than 90 days after receipt of the administrative 
                appeal. If it is determined that a violation of 
                paragraph (1) or (2) has occurred, the review board 
                shall issue a final decision and order providing relief 
                authorized under paragraph (14). Such decision and 
                order shall constitute final agency action with respect 
                to the matter appealed.
          ``(9) Settlement in the administrative process.--
                  ``(A) In general.--At any time before issuance of a 
                final order, an investigation or proceeding under this 
                subsection may be terminated on the basis of a 
                settlement agreement entered into by the parties.
                  ``(B) Public policy considerations.--Neither the 
                Secretary, an administrative law judge, nor the review 
                board conducting a hearing under this subsection shall 
                accept a settlement that contains conditions 
                conflicting with the rights protected under this Act or 
                that are contrary to public policy, including a 
                restriction on a complainant's right to future 
                employment with employers other than the specific 
                employers named in a complaint.
          ``(10) Inaction by the review board or administrative law 
        judge.--
                  ``(A) In general.--The complainant may bring a de 
                novo action described in subparagraph (B) if--
                          ``(i) an administrative law judge has not 
                        issued a decision and order within the 90-day 
                        time period required under paragraph 
                        (7)(B)(iii); or
                          ``(ii) the review board has not issued a 
                        decision and order within the 90-day time 
                        period required under paragraph (8)(C).
                  ``(B) De novo action.--Such de novo action may be 
                brought at law or equity in the United States district 
                court for the district where a violation of paragraph 
                (1) or (2) allegedly occurred or where the complainant 
                resided on the date of such alleged violation. The 
                court shall have jurisdiction over such action without 
                regard to the amount in controversy and to order 
                appropriate relief under paragraph (14). Such action 
                shall, at the request of either party to such action, 
                be tried by the court with a jury.
          ``(11) Judicial review.--
                  ``(A) Timely appeal to the court of appeals.--Any 
                party adversely affected or aggrieved by a final 
                decision and order issued under this subsection may 
                obtain review of such decision and order in the United 
                States Court of Appeals for the circuit where the 
                violation, with respect to which such final decision 
                and order was issued, allegedly occurred or where the 
                complainant resided on the date of such alleged 
                violation. To obtain such review, a party shall file a 
                petition for review not later than 60 days after the 
                final decision and order was issued. Such review shall 
                conform to chapter 7 of title 5, United States Code. 
                The commencement of proceedings under this subparagraph 
                shall not, unless ordered by the court, operate as a 
                stay of the final decision and order.
                  ``(B) Limitation on collateral attack.--An order and 
                decision with respect to which review may be obtained 
                under subparagraph (A) shall not be subject to judicial 
                review in any criminal or other civil proceeding.
          ``(12) Enforcement of order.--If a respondent fails to comply 
        with an order issued under this subsection, the Secretary or 
        the complainant on whose behalf the order was issued may file a 
        civil action for enforcement in the United States district 
        court for the district in which the violation was found to 
        occur to enforce such order. If both the Secretary and the 
        complainant file such action, the action of the Secretary shall 
        take precedence. The district court shall have jurisdiction to 
        grant all appropriate relief described in paragraph (14).
          ``(13) Burdens of proof.--
                  ``(A) Criteria for determination.--In making a 
                determination or adjudicating a complaint pursuant to 
                this subsection, the Secretary, administrative law 
                judge, review board, or a court may determine that a 
                violation of paragraph (1) or (2) has occurred only if 
                the complainant demonstrates that any conduct described 
                in paragraph (1) or (2) with respect to the complainant 
                was a contributing factor in the adverse action alleged 
                in the complaint.
                  ``(B) Prohibition.--Notwithstanding subparagraph (A), 
                a decision or order that is favorable to the 
                complainant shall not be issued in any administrative 
                or judicial action pursuant to this subsection if the 
                respondent demonstrates by clear and convincing 
                evidence that the respondent would have taken the same 
                adverse action in the absence of such conduct.
          ``(14) Relief.--
                  ``(A) Order for relief.--If the Secretary, 
                administrative law judge, review board, or a court 
                determines that a violation of paragraph (1) or (2) has 
                occurred, the Secretary or court, respectively, shall 
                have jurisdiction to order all appropriate relief, 
                including injunctive relief, compensatory and exemplary 
                damages, including--
                          ``(i) affirmative action to abate the 
                        violation;
                          ``(ii) reinstatement without loss of position 
                        or seniority, and restoration of the terms, 
                        rights, conditions, and privileges associated 
                        with the complainant's employment, including 
                        opportunities for promotions to positions with 
                        equivalent or better compensation for which the 
                        complainant is qualified;
                          ``(iii) compensatory and consequential 
                        damages sufficient to make the complainant 
                        whole, (including back pay, prejudgment 
                        interest, and other damages); and
                          ``(iv) expungement of all warnings, 
                        reprimands, or derogatory references that have 
                        been placed in paper or electronic records or 
                        databases of any type relating to the actions 
                        by the complainant that gave rise to the 
                        unfavorable personnel action, and, at the 
                        complainant's direction, transmission of a copy 
                        of the decision on the complaint to any person 
                        whom the complainant reasonably believes may 
                        have received such unfavorable information.
                  ``(B) Attorneys' fees and costs.--If the Secretary or 
                an administrative law judge, review board, or court 
                grants an order for relief under subparagraph (A), the 
                Secretary, administrative law judge, review board, or 
                court, respectively, shall assess, at the request of 
                the employee against the employer--
                          ``(i) reasonable attorneys' fees; and
                          ``(ii) costs (including expert witness fees) 
                        reasonably incurred, as determined by the 
                        Secretary, administrative law judge, review 
                        board, or court, respectively, in connection 
                        with bringing the complaint upon which the 
                        order was issued.
          ``(15)  Procedural rights.--The rights and remedies provided 
        for in this subsection may not be waived by any agreement, 
        policy, form, or condition of employment, including by any pre-
        dispute arbitration agreement or collective bargaining 
        agreement.
          ``(16) Savings.--Nothing in this subsection shall be 
        construed to diminish the rights, privileges, or remedies of 
        any employee who exercises rights under any Federal or State 
        law or common law, or under any collective bargaining 
        agreement.
          ``(17) Election of venue.--
                  ``(A) In general.--An employee of an employer who is 
                located in a State that has a State plan approved under 
                section 18 may file a complaint alleging a violation of 
                paragraph (1) or (2) by such employer with--
                          ``(i) the Secretary under paragraph (5); or
                          ``(ii) a State plan administrator in such 
                        State.
                  ``(B) Referrals.--If--
                          ``(i) the Secretary receives a complaint 
                        pursuant to subparagraph (A)(i), the Secretary 
                        shall not refer such complaint to a State plan 
                        administrator for resolution; or
                          ``(ii) a State plan administrator receives a 
                        complaint pursuant to subparagraph (A)(ii), the 
                        State plan administrator shall not refer such 
                        complaint to the Secretary for resolution.''.
  (d) Relation to Enforcement.--Section 17(j) of such Act (29 U.S.C. 
666(j)) is amended by inserting before the period the following: ``, 
including the history of violations under section 11(c)''.

SEC. 702. VICTIMS' RIGHTS.

  The Occupational Safety and Health Act of 1970 is amended by 
inserting after section 9 (29 U.S.C. 658) the following:

``SEC. 9A. VICTIMS' RIGHTS.

  ``(a) Rights Before the Secretary.--A victim or the representative of 
a victim, shall be afforded the right, with respect to an inspection or 
investigation conducted under section 8 to--
          ``(1) meet with the Secretary regarding the inspection or 
        investigation conducted under such section before the 
        Secretary's decision to issue a citation or take no action;
          ``(2) receive, at no cost, a copy of any citation or report, 
        issued as a result of such inspection or investigation, at the 
        same time as the employer receives such citation or report;
          ``(3) be informed of any notice of contest or addition of 
        parties to the proceedings filed under section 10(c); and
          ``(4) be provided notification of the date and time or any 
        proceedings, service of pleadings, and other relevant 
        documents, and an explanation of the rights of the employer, 
        employee and employee representative, and victim to participate 
        in proceedings conducted under section 10(c).
  ``(b) Rights Before the Commission.--Upon request, a victim or 
representative of a victim shall be afforded the right with respect to 
a work-related bodily injury or death to--
          ``(1) be notified of the time and date of any proceeding 
        before the Commission;
          ``(2) receive pleadings and any decisions relating to the 
        proceedings; and
          ``(3) be provided an opportunity to appear and make a 
        statement in accordance with the rules prescribed by the 
        Commission.
  ``(c) Modification of Citation.--Before entering into an agreement to 
withdraw or modify a citation issued as a result of an inspection or 
investigation of an incident under section 8, the Secretary shall 
notify a victim or representative of a victim and provide the victim or 
representative of a victim with an opportunity to appear and make a 
statement before the parties conducting settlement negotiations. In 
lieu of an appearance, the victim or representative of the victim may 
elect to submit a letter to the Secretary and the parties.
  ``(d) Secretary Procedures.--The Secretary shall establish 
procedures--
          ``(1) to inform victims of their rights under this section; 
        and
          ``(2) for the informal review of any claim of a denial of 
        such a right.
  ``(e) Commission Procedures and Considerations.--The Commission 
shall--
          ``(1) establish procedures relating to the rights of victims 
        to be heard in proceedings before the Commission; and
          ``(2) in rendering any decision, provide due consideration to 
        any statement or information provided by any victim before the 
        Commission.
  ``(f) Family Liaisons.--The Secretary shall designate at least 1 
employee at each area office of the Occupational Safety and Health 
Administration to serve as a family liaison to--
          ``(1) keep victims informed of the status of investigations, 
        enforcement actions, and settlement negotiations; and
          ``(2) assist victims in asserting their rights under this 
        section.
  ``(g) Definition.--In this section, the term `victim' means--
          ``(1) an employee, including a former employee, who has 
        sustained a work-related injury or illness that is the subject 
        of an inspection or investigation conducted under section 8; or
          ``(2) a family member (as further defined by the Secretary) 
        of a victim described in paragraph (1), if--
                  ``(A) the victim dies as a result of a incident that 
                is the subject of an inspection or investigation 
                conducted under section 8; or
                  ``(B) the victim sustains a work-related injury or 
                illness that is the subject of an inspection or 
                investigation conducted under section 8, and the victim 
                because of incapacity cannot reasonably exercise the 
                rights under this section.''.

SEC. 703. CORRECTION OF SERIOUS, WILLFUL, OR REPEATED VIOLATIONS 
                    PENDING CONTEST AND PROCEDURES FOR A STAY.

  Section 10 of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 659) is amended by adding at the end the following:
  ``(d) Correction of Serious, Willful, or Repeated Violations Pending 
Contest and Procedures for a Stay.--
          ``(1) Period permitted for correction of serious, willful, or 
        repeated violations.--For each violation which the Secretary 
        designates as serious, willful, or repeated, the period 
        permitted for the correction of the violation shall begin to 
        run upon receipt of the citation.
          ``(2) Filing of a motion of contest.--The filing of a notice 
        of contest by an employer--
                  ``(A) shall not operate as a stay of the period for 
                correction of a violation designated as serious, 
                willful, or repeated; and
                  ``(B) may operate as a stay of the period for 
                correction of a violation not designated by the 
                Secretary as serious, willful, or repeated.
          ``(3) Criteria and rules of procedure for stays.--
                  ``(A) Motion for a stay.--An employer that receives a 
                citation alleging a violation designated as serious, 
                willful, or repeated and that files a notice of contest 
                to the citation asserting that the time set for 
                abatement of the alleged violation is unreasonable or 
                challenging the existence of the alleged violation may 
                file with the Commission a motion to stay the period 
                for the abatement of the violation.
                  ``(B) Criteria.--In determining whether a stay should 
                be issued on the basis of a motion filed under 
                subparagraph (A), the Commission may grant a stay only 
                if the employer has demonstrated--
                          ``(i) a substantial likelihood of success on 
                        the areas contested under subparagraph (A); and
                          ``(ii) that a stay will not adversely affect 
                        the health and safety of workers.
                  ``(C) Rules of procedure.--The Commission shall 
                develop rules of procedure for conducting a hearing on 
                a motion filed under subparagraph (A) on an expedited 
                basis. At a minimum, such rules shall provide:
                          ``(i) That a hearing before an administrative 
                        law judge shall occur not later than 15 days 
                        following the filing of the motion for a stay 
                        (unless extended at the request of the 
                        employer), and shall provide for a decision on 
                        the motion not later than 15 days following the 
                        hearing (unless extended at the request of the 
                        employer).
                          ``(ii) That a decision of an administrative 
                        law judge on a motion for stay is rendered on a 
                        timely basis.
                          ``(iii) That if a party is aggrieved by a 
                        decision issued by an administrative law judge 
                        regarding the stay, such party has the right to 
                        file an objection with the Commission not later 
                        than 5 days after receipt of the administrative 
                        law judge's decision. Within 10 days after 
                        receipt of the objection, a Commissioner, if a 
                        quorum is seated pursuant to section 12(f), 
                        shall decide whether to grant review of the 
                        objection. If, within 10 days after receipt of 
                        the objection, no decision is made on whether 
                        to review the decision of the administrative 
                        law judge, the Commission declines to review 
                        such decision, or no quorum is seated, the 
                        decision of the administrative law judge shall 
                        become a final order of the Commission. If the 
                        Commission grants review of the objection, the 
                        Commission shall issue a decision regarding the 
                        stay not later than 30 days after receipt of 
                        the objection. If the Commission fails to issue 
                        such decision within 30 days, the decision of 
                        the administrative law judge shall become a 
                        final order of the Commission.
                          ``(iv) For notification to employees or 
                        representatives of affected employees of 
                        requests for such hearings and shall provide 
                        affected employees or representatives of 
                        affected employees an opportunity to 
                        participate as parties to such hearings.''.

SEC. 704. CONFORMING AMENDMENTS.

  Section 17(d) of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 666(d)) is amended to read as follows:
  ``(d) Any employer who fails to correct a violation designated by the 
Secretary as serious, willful, or repeated and for which a citation has 
been issued under section 9(a) within the period permitted for its 
correction (and a stay has not been issued by the Commission under 
section 10(d)) may be assessed a civil penalty of not more than $7,000 
for each day during which such failure or violation continues. Any 
employer who fails to correct any other violation for which a citation 
has been issued under section 9(a) of this title within the period 
permitted for its correction (which period shall not begin to run until 
the date of the final order of the Commission in the case of any review 
proceeding under section 10 initiated by the employer in good faith and 
not solely for delay of avoidance of penalties) may be assessed a civil 
penalty of not more than $7,000 for each day during which such failure 
or violation continues.''.

SEC. 705. CIVIL PENALTIES.

  (a) In General.--Section 17 of the Occupational Safety and Health Act 
of 1970 (29 U.S.C. 666) is amended--
          (1) in subsection (a)--
                  (A) by striking ``$70,000'' and inserting 
                ``$120,000'';
                  (B) by striking ``$5,000'' and inserting ``$8,000''; 
                and
                  (C) by adding at the end the following: ``In 
                determining whether a violation is repeated, the 
                Secretary or the Commission shall consider the 
                employer's history of violations under this Act and 
                under State occupational safety and health plans 
                established under section 18. If such a willful or 
                repeated violation caused or contributed to the death 
                of an employee, such civil penalty amounts shall be 
                increased to not more than $250,000 for each such 
                violation, but not less than $50,000 for each such 
                violation, except that for an employer with 25 or fewer 
                employees such penalty shall not be less than $25,000 
                for each such violation.'';
          (2) in subsection (b)--
                  (A) by striking ``$7,000'' and inserting ``$12,000''; 
                and
                  (B) by adding at the end the following: ``If such a 
                violation caused or contributed to the death of an 
                employee, such civil penalty amounts shall be increased 
                to not more than $50,000 for each such violation, but 
                not less than $20,000 for each such violation, except 
                that for an employer with 25 or fewer employees such 
                penalty shall not be less than $10,000 for each such 
                violation.'';
          (3) in subsection (c), by striking ``$7,000'' and inserting 
        ``$12,000'';
          (4) in subsection (d), as amended, by striking ``$7,000'' 
        each place it occurs and inserting ``$12,000'';
          (5) by redesignating subsections (e) through (i) as 
        subsections (f) through (j), and subsections (j) through (l) as 
        subsections (l) through (n) respectively; and
          (6) in subsection (j) (as so redesignated) by striking 
        ``$7,000'' and inserting ``$12,000''.
  (b) Inflation Adjustment.--Section 17 is further amended by inserting 
after subsection (d) the following:
  ``(e) Amounts provided under this section for civil penalties shall 
be adjusted by the Secretary at least once during each 4-year period 
beginning January 1, 2015, to account for the percentage increase or 
decrease in the Consumer Price Index for all urban consumers during 
such period.''.

SEC. 706. CRIMINAL PENALTIES.

  (a) In General.--Section 17 of the Occupational Safety and Health Act 
of 1970 (29 U.S.C. 666) (as amended by section 705) is further 
amended--
          (1) by amending subsection (f) (as redesignated by section 
        705) to read as follows:
  ``(f)(1) Any employer who knowingly violates any standard, rule, or 
order promulgated under section 6 of this Act, or of any regulation 
prescribed under this Act, and that violation caused or significantly 
contributed to the death of any employee, shall, upon conviction, be 
punished by a fine in accordance with title 18, United States Code, or 
by imprisonment for not more than 10 years, or both, except that if the 
conviction is for a violation committed after a first conviction of 
such person under this subsection or subsection (i), punishment shall 
be by a fine in accordance title 18, United States Code, or by 
imprisonment for not more than 20 years, or by both.
  ``(2) For the purpose of this subsection, the term `employer' means, 
in addition to the definition contained in section 3 of this Act, any 
officer or director.'';
          (2) by amending subsection (g) (as redesignated by section 
        705) to read as follows:
  ``(g) Unless otherwise authorized by this Act, any person that 
knowingly gives, causes to give, or attempts to give or cause to give, 
advance notice of any inspection conducted under this Act with the 
intention of impeding, interfering with, or adversely affecting the 
results of such inspection, shall be fined under title 18, United 
States Code, imprisoned for not more than 5 years, or both.''.
          (3) in subsection (h) (as redesignated by section 705), by 
        striking ``fine of not more than $10,000, or by imprisonment 
        for not more than six months,'' and inserting ``fine in 
        accordance with title 18, United States Code, or by 
        imprisonment for not more than 5 years,'';
          (4) by inserting after subsection (j) (as redesignated by 
        section 705) the following:
  ``(k)(1) Any employer who knowingly violates any standard, rule, or 
order promulgated under section 6, or any regulation prescribed under 
this Act, and that violation caused or significantly contributed to 
serious bodily harm to any employee but does not cause death to any 
employee, shall, upon conviction, be punished by a fine in accordance 
with title 18, United States Code, or by imprisonment for not more than 
5 years, or by both, except that if the conviction is for a violation 
committed after a first conviction of such person under this subsection 
or subsection (e), punishment shall be by a fine in accordance with 
title 18, United States Code, or by imprisonment for not more than 10 
years, or by both.
  ``(2) For the purpose of this subsection, the term `employer' means, 
in addition to the definition contained in section 3 of this Act, any 
officer or director.
  ``(3) For purposes of this subsection, the term `serious bodily harm' 
means bodily injury or illness that involves--
          ``(A) a substantial risk of death;
          ``(B) protracted unconsciousness;
          ``(C) protracted and obvious physical disfigurement; or
          ``(D) protracted loss or impairment, either temporary or 
        permanent, of the function of a bodily member, organ, or mental 
        faculty.''.
  (b) Jurisdiction for Prosecution Under State and Local Criminal 
Laws.--Such section is further amended by adding at the end the 
following:
  ``(o) Nothing in this Act shall preclude a State or local law 
enforcement agency from conducting criminal prosecutions in accordance 
with the laws of such State or locality.''.

SEC. 707. PRE-FINAL ORDER INTEREST.

  Section 17(n) of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 666) (as redesignated by section 706(a)(4)) (29 U.S.C. 666(n)) 
is amended by adding at the end the following: ``Pre-final order 
interest on such penalties shall begin to accrue on the date the party 
contests a citation issued under this Act, and shall end upon the 
issuance of the final order. Such pre-final order interest shall be 
calculated at the current underpayment rate determined by the Secretary 
of the Treasury pursuant to section 6621 of the Internal Revenue Code 
of 1986, and shall be compounded daily. Post-final order interest shall 
begin to accrue 30 days after the date a final order of the Commission 
or the court is issued, and shall be charged at the rate of 8 percent 
per year.''.

SEC. 708. REVIEW OF STATE OCCUPATIONAL SAFETY AND HEALTH PLANS.

  Section 18 of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 668) is amended--
          (1) by amending subsection (f) to read as follows:
  ``(f)(1) The Secretary shall, on the basis of reports submitted by 
the State agency and the Secretary's own inspections, make a continuing 
evaluation of the manner in which each State that has a plan approved 
under this section is carrying out such plan. Such evaluation shall 
include an assessment of whether the State continues to meet the 
requirements of subsection (c) of this section and any other criteria 
or indices of effectiveness specified by the Secretary in regulations. 
Whenever the Secretary finds, on the basis of such evaluation, that in 
the administration of the State plan there is a failure to comply 
substantially with any provision of the State plan (or any assurance 
contained therein), the Secretary shall make an initial determination 
of whether the failure is of such a nature that the plan should be 
withdrawn or whether the failure is of such a nature that the State 
should be given the opportunity to remedy the deficiencies, and provide 
notice of the Secretary's findings and initial determination.
  ``(2) If the Secretary makes an initial determination to reassert and 
exercise concurrent enforcement authority while the State is given an 
opportunity to remedy the deficiencies, the Secretary shall afford the 
State an opportunity for a public hearing within 15 days of such 
request, provided that such request is made not later than 10 days 
after Secretary's notice to the State. The Secretary shall review and 
consider the testimony, evidence, or written comments, and not later 
than 30 days following such hearing, make a determination to affirm, 
reverse, or modify the Secretary's initial determination to reassert 
and exercise concurrent enforcement authority under sections 8, 9, 10, 
13, and 17 with respect to standards promulgated under section 6 and 
obligations under section 5(a). Following such a determination by the 
Secretary, or in the event that the State does not request a hearing 
within the time frame set forth in this paragraph, the Secretary may 
reassert and exercise such concurrent enforcement authority, while a 
final determination is pending under paragraph (3) or until the 
Secretary has determined that the State has remedied the deficiencies 
as provided under paragraph (4). Such determination shall be published 
in the Federal Register. The procedures set forth in section 18(g) 
shall not apply to a determination by the Secretary to reassert and 
exercise such concurrent enforcement authority.
  ``(3) If the Secretary makes an initial determination that the plan 
should be withdrawn, the Secretary shall provide due notice and the 
opportunity for a hearing. If based on the evaluation, comments, and 
evidence, the Secretary makes a final determination that there is a 
failure to comply substantially with any provision of the State plan 
(or any assurance contained therein), he shall notify the State agency 
of the withdrawal of approval of such plan and upon receipt of such 
notice such plan shall cease to be in effect, but the State may retain 
jurisdiction in any case commenced before the withdrawal of the plan in 
order to enforce standards under the plan whenever the issues involved 
do not relate to the reasons for the withdrawal of the plan.
  ``(4) If the Secretary makes a determination that the State should be 
provided the opportunity to remedy the deficiencies, the Secretary 
shall provide the State an opportunity to respond to the Secretary's 
findings and the opportunity to remedy such deficiencies within a time 
period established by the Secretary, not to exceed 1 year. The 
Secretary may extend and revise the time period to remedy such 
deficiencies, if the State's legislature is not in session during this 
1 year time period, or if the State demonstrates that it is not 
feasible to correct the deficiencies in the time period set by the 
Secretary, and the State has a plan to correct the deficiencies within 
a reasonable time period. If the Secretary finds that the State agency 
has failed to remedy such deficiencies within the time period specified 
by the Secretary and that the State plan continues to fail to comply 
substantially with a provision of the State plan, the Secretary shall 
withdraw the State plan as provided for in paragraph (3).''; and
          (2) by adding at the end the following new subsection:
  ``(i) Not later than 18 months after the date of enactment of this 
subsection, and every 5 years thereafter, the Comptroller General shall 
complete and issue a review of the effectiveness of State plans to 
develop and enforce safety and health standards to determine if they 
are at least as effective as the Federal program and to evaluate 
whether the Secretary's oversight of State plans is effective. The 
Comptroller General's evaluation shall assess--
          ``(1) the effectiveness of the Secretary's oversight of State 
        plans, including the indices of effectiveness used by the 
        Secretary;
          ``(2) whether the Secretary's investigations in response to 
        Complaints About State Plan Administration (CASPA) are 
        adequate, whether significant policy issues have been 
        identified by headquarters and corrective actions are fully 
        implemented by each State;
          ``(3) whether the formula for the distribution of funds 
        described in section 23(g) to State programs is fair and 
        adequate; and
          ``(4) whether State plans are as effective as the Federal 
        program in preventing occupational injuries, illnesses and 
        deaths, and investigating discrimination complaints, through an 
        evaluation of at least 20 percent of approved State plans, and 
        which shall cover--
                  ``(A) enforcement effectiveness, including handling 
                of fatalities, serious incidents and complaints, 
                compliance with inspection procedures, hazard 
                recognition, verification of abatement, violation 
                classification, citation and penalty issuance, 
                including appropriate use of willful and repeat 
                citations, and employee involvement;
                  ``(B) inspections, the number of programmed health 
                and safety inspections at private and public sector 
                establishments, and whether the State targets the 
                highest hazard private sector work sites and facilities 
                in that State;
                  ``(C) budget and staffing, including whether the 
                State is providing adequate budget resources to hire, 
                train and retain sufficient numbers of qualified staff, 
                including timely filling of vacancies;
                  ``(D) administrative review, including the quality of 
                decisions, consistency with Federal precedence, 
                transparency of proceedings, decisions and records are 
                available to the public, adequacy of State defense, and 
                whether the State appropriately appeals adverse 
                decisions;
                  ``(E) anti discrimination, including whether 
                discrimination complaints are processed in a timely 
                manner, whether supervisors and investigators are 
                properly trained to investigate discrimination 
                complaints, whether a case file review indicates merit 
                cases are properly identified consistent with Federal 
                policy and procedure, whether employees are notified of 
                their rights, and whether there is an effective process 
                for employees to appeal the dismissal of a complaint;
                  ``(F) program administration, including whether the 
                State's standards and policies are at least as 
                effective as the Federal program and are updated in a 
                timely manner, and whether National Emphasis Programs 
                that are applicable in such States are adopted and 
                implemented in a manner that is at least as effective 
                as the Federal program;
                  ``(G) whether the State plan satisfies the 
                requirements for approval set forth in this section and 
                its implementing regulations; and
                  ``(H) other such factors identified by the 
                Comptroller General, or as requested by the Committee 
                on Education and Labor of the House of Representatives 
                or the Committee on Health, Education, Labor and 
                Pensions of the Senate.''.

SEC. 709. HEALTH HAZARD EVALUATIONS BY THE NATIONAL INSTITUTE FOR 
                    OCCUPATIONAL SAFETY AND HEALTH.

  Section 20(a)(6) of the Occupational Safety and Health Act of 1970 
(29 U.S.C. 669(a)(6)) is amended by striking the second sentence and 
inserting the following: ``The Secretary shall determine following a 
written request by any employer, authorized representative of current 
or former employees, physician, other Federal agency, or State or local 
health department, specifying with reasonable particularity the grounds 
on which the request is made, whether any substance normally found in 
the place of employment has potentially toxic effects in such 
concentrations as used or found or whether any physical agents, 
equipment, or working condition found or used has potentially hazardous 
effects; and shall submit such determination both to employers and 
affected employees as soon as possible.''.

SEC. 710. AUTHORIZATION OF COOPERATIVE AGREEMENTS BY NIOSH OFFICE OF 
                    MINE SAFETY AND HEALTH.

  Section 22(h)(3) of the Occupational Safety and Health Act of 1970 
(29 U.S.C. 671(h)(3)) is amended--
          (1) in subparagraph (B), by striking ``and'' at the end;
          (2) by redesignating subparagraph (C) as subparagraph (D); 
        and
          (3) by inserting after subparagraph (B) the following:
                  ``(C) enter into cooperative agreements or contracts 
                with international institutions and private entities to 
                improve mine safety and health through the development 
                and evaluation of new interventions; and''.

SEC. 711. EFFECTIVE DATE.

  (a) General Rule.--Except as provided for in subsection (b), this 
title and the amendments made by this title shall take effect not later 
than 90 days after the date of the enactment of this Act.
  (b) Exception for States and Political Subdivisions.--A State that 
has a State plan approved under section 18 (29 U.S.C. 667) shall amend 
its State plan to conform with the requirements of this Act and the 
amendments made by this Act not later than 12 months after the date of 
the enactment of this Act. The Secretary of Labor may extend the period 
for a State to make such amendments to its State plan by not more than 
12 months, if the State's legislature is not in session during the 12-
month period beginning with the date of the enactment of this Act. Such 
amendments to the State plan shall take effect not later than 90 days 
after the adoption of such amendments by such State.

                               I. Purpose

    The purpose of H.R. 5663, the Robert C. Byrd Miner Safety 
and Health Act of 2010, is to strengthen the nation's mine and 
occupational safety and health laws in order to toughen 
enforcement of such laws, improve compliance, and prevent miner 
and other worker fatalities, injuries, and illnesses.

           II. Committee Action Including Legislative History


                 OCCUPATIONAL SAFETY AND HEALTH REFORM

                          LEGISLATIVE HISTORY

    The passage of the Occupational Safety and Health Act of 
1970 (OSHA or OSH Act) radically transformed the workplace. The 
American labor movement had advocated for workplace reforms 
since the arrival of the Industrial Revolution, but worker 
health and safety had long been the purview of state 
regulation. Massachusetts passed the nation's first safety and 
health legislation in 1877, and by 1890, nine states followed 
suit.
    The OSH Act was passed following spirited debate among 
labor, government and business. The purpose of the Act was to 
develop and enforce mandatory federal safety and health 
standards to protect workers from workplace hazards. In the 
year the OSH Act was passed, 13,800 workers were killed by 
workplace hazards in the United States. In 2008, 5,071 fatal 
work injuries and 3.7 million nonfatal occupational injuries 
and illnesses were recorded. In the nearly forty years of its 
existence, the Act has saved hundreds of thousands of lives and 
millions more of avoided exposure to preventable illnesses and 
injuries.
    The OSH Act has not been significantly amended since its 
passage with the exception of the 1990 Omnibus Budget 
Reconciliation Act. The Reconciliation Act increased the 
maximum penalties for workplace health and safety violations 
and imposed minimum penalties for willful violations.

                       110TH CONGRESS (2007-2008)

                HEARINGS IN THE HOUSE OF REPRESENTATIVES

Committee on Education and Labor

    On March 22, 2007, the Committee on Education and Labor 
held a hearing entitled ``The BP Texas City Disaster and Worker 
Safety,'' which reflected on an explosion in a Texas British 
Petroleum refinery two years before. The panel included: 
Admiral Frank ``Skip'' Bowman, President of the Nuclear Safety 
Institute and member of the Baker Panel; Red Cavaney, President 
and CEO of the American Petroleum Institute; Hon. Carolyn W. 
Merritt, Chair of the U.S. Chemical Safety and Hazard 
Investigation Board; Kim Nibarger, health and safety specialist 
at the United Steelworkers International Union; and Eva Rowe, a 
relative of a BP Texas City disaster victim. At the hearing, 
the Committee examined what could be done to improve the safety 
of refineries and chemical facilities and increase OSHA's 
effectiveness.
    On January 14, 2008, the Subcommittee on Workforce 
Protections of the Committee on Education and Labor held a 
field hearing in Linden, New Jersey, entitled ``Workplace 
Tragedies: Examining Problems and Solutions.'' The Subcommittee 
heard testimony relating to the deaths of three industrial 
laundry facility employees in Linden. Witnesses included Rick 
Engler, Director of the New Jersey Work Environment Council; 
Eric Frumin, Director of Occupational Safety and Health at 
UNITE HERE; David J. Socolow, Commissioner of the New Jersey 
Department of Labor and Workforce Development; James W. 
Stanley, President of FDRsafety; and Charles Wowkanech, 
President of the New Jersey State AFL-CIO.
    On June 19, 2008, the Committee on Education and Labor held 
a hearing entitled ``Hidden Tragedy: Underreporting of 
Workplace Injuries and Illnesses.'' The panel included: Baruch 
Fellner, Esq. of Gibson, Dunn & Crutcher, LLP, on behalf of the 
U.S. Chamber of Commerce; Robert K. McLellan, M.D., MPH, 
FACOEM, representing the American College of Occupational and 
Environmental Medicine; Kenneth D. Rosenman, M.D., FACPM, FACE, 
and Professor of Medicine at Michigan State University College 
of Human Medicine; John Ruser, Assistant Commissioner for 
Safety and Health Statistics of the Bureau of Labor Statistics; 
A.C. Span, former employee of Bashas' Distribution Center; and 
Bob Whitmore, former Chief of the OSHA Division of 
Recordkeeping, U.S. Department of Labor.
    On June 24, 2008, the Committee on Education and Labor held 
a hearing entitled ``Is OSHA Failing to Adequately Enforce 
Construction Safety Rules?'' The panel included: Mark H. Ayers, 
President of the Building and Construction Trades Department of 
the AFL-CIO; George Cole, former ironworker; Hon. Edwin G. 
Foulke, Jr., Assistant Secretary of OSHA, U.S. Department of 
Labor; Mike Kallmeyer, Senior Vice President for Construction 
at Denier Electric; and Robert LiMandri, Acting Buildings 
Commissioner of the City of New York.

                         HEARINGS IN THE SENATE

Committee on Health, Education, Labor and Pensions

    On April 26, 2007, the Senate Committee on Health, 
Education, Labor and Pensions held a hearing entitled ``Is OSHA 
Working for Working People?'' The panel included: David 
Michaels, Ph.D., Research Professor and Associate Chairman of 
the Department of Environmental and Occupational Health, George 
Washington University; Peg Seminario, Director of Occupational 
Safety and Health, AFL-CIO; Konnie Compagna, Registered Nurse, 
Valley Medical Center, Kent, WA; and Thomas Cecich, CIH, CSP, 
President of TFC and Associates in Apex, NC.
    On April 1, 2008, the Subcommittee on Employment and 
Workplace Safety of the Senate Committee on Health, Education, 
Labor and Pensions held a hearing entitled ``Serious OSHA 
Violations: Strategies for Breaking Dangerous Patterns.'' The 
panel included: Eric Frumin, Health and Safety Expert, Change 
to Win; Doris Morrow, Member, UFCW Local Union 227, Robards, 
KY; Gerard F. Scannell, Former OSHA Director and Former Chair 
of the National Safety Council; and Carmen Bianco, Executive 
Consultant, Behavioral Science Technology, Inc., Ojai, CA.
    On April 29, 2008, the Senate Committee on Health, 
Education, Labor and Pensions held a hearing entitled ``When a 
Worker is Killed: Do OSHA Penalties Enhance Workplace Safety?'' 
The panel included: Peg Seminario, Director of Occupational 
Safety and Health, AFL-CIO; David Uhlmann, Director of the 
Environmental Law and Policy Program, University of Michigan 
Law School; Ron Hayes, Director, Fight Project, Fairhope, AL; 
Donald Coit Smith, Resident, Temple, TX; and George Jenson, 
III, Owner, Jenson Fire Protection, Inc., Ellicott City, MD.

                       111TH CONGRESS (2009-2010)

                HEARINGS IN THE HOUSE OF REPRESENTATIVES

Committee on Education and Labor

    On April 28, 2009, the Committee on Education and Labor 
held a hearing entitled ``Are OSHA's Penalties Adequate to 
Deter Health and Safety Violations?'' in response to the 
introduction by Rep. Lynn Woolsey of H.R. 2067, Protecting 
America's Workers Act. The panel included: Becky Foster, mother 
of Jeremy Foster, a fatally injured employee of a timber 
company; Lawrence P. Halprin, partner at Keller and Heckman, 
LLP; Peg Seminario, Director of Safety and Health at the AFL-
CIO; and David M. Uhlmann, the Jeffrey F. Liss Professor and 
Director of the environmental law and policy program at the 
University of Michigan Law School.
    On October 29, 2009, the Committee on Education and Labor 
held a hearing entitled, ``Nevada's Workplace Health and Safety 
Enforcement Program: OSHA's Findings and Recommendations,'' 
after concerns surfaced regarding the enforcement of Nevada's 
worker safety laws. The panel included: Jordan Barab, Acting 
Assistant Secretary for Occupational Safety and Health of the 
U.S. Department of Labor; Donald E. Jayne, Administrator of the 
Division of Industrial Relations of the Nevada Department of 
Business and Industry; Debi Koehler-Fergen, mother of Travis 
Koehler, a worker who died in a preventable workplace accident; 
Franklin E. Mirer, Ph.D., CIH, and professor of environmental 
and occupational health sciences of the Urban Public Health 
Program of Hunter College, City University of New York; and 
Hon. Harry Reid, Majority Leader, U.S. Senate.
    On March 16, 2010, the Workforce Protections Subcommittee 
of the Committee on Education and Labor held a hearing 
entitled, ``Protecting America's Workers Act: Modernizing OSHA 
Penalties,'' where it examined H.R. 2067, introduced by Rep. 
Lynn Woolsey. The panel included: John Cruden, Acting Assistant 
Attorney General of the Environment and Natural Resources 
Division of the Department of Justice; David Michaels, 
Assistant Secretary of Labor for OSHA; Eric Frumin, Health and 
Safety Coordinator at Change to Win; and Jonathan Snare; 
partner at Morgan, Lewis & Bockius LLP, on behalf of the U.S. 
Chamber of Commerce.
    On April 28, 2010, the Workforce Protections Subcommittee 
of the Committee on Education and Labor held a hearing entitled 
``Whistleblower and Victim's Rights Provisions of H.R. 2067, 
the Protecting America's Workers Act.'' The hearing considered 
a proposal to strengthen protections for workers who report 
dangerous working conditions. The panel included: Jordan Barab, 
Deputy Assistant Secretary of Labor for Occupational Safety and 
Health; Lloyd B. Chinn, partner at Proskauer Rose LLP; Tonya 
Ford, niece of Robert Fitch, a worker killed at an Archer 
Daniels Midland plant; Neal Jorgensen, a whistleblower formerly 
employed at Plastic Industries; Dr. Celeste Monforton, and 
Assistant Research Professor at the Department of Environmental 
and Occupational Health of the George Washington University; 
Dennis J. Morikawa of Morgan, Lewis & Bockius LLP; and Lynn 
Rhinehart, General Counsel of the AFL-CIO.
    On June 28, 2010, the Workforce Protections Subcommittee of 
the Committee on Education and Labor held a field hearing 
entitled ``Examining the Tragic Explosion at the Kleen Energy 
Power Plant in Middletown, Connecticut.'' The panel included: 
Edward Badamo, Fire Chief of the South Fire District of 
Middletown, CT; Hon. John Bresland, Board Member of the U.S. 
Chemical Safety and Hazard Investigation Board; Glenn Corbett, 
Associate Professor and Chair of the Department of Protection 
Management at John Jay College of Criminal Justice; Hon. 
Sebastian Giuliano, Mayor of Middletown, CT; Hon. Alan Nevas, 
Chair of the Governor's Kleen Energy Systems and Explosion 
Origin and Cause Panel; and Jodi Thomas, wife of Ron Crabb, a 
pipefitter who died in the explosion.

                         HEARINGS IN THE SENATE

Committee on Health, Education, Labor and Pensions

    On April 28, 2009, the Subcommittee on Employment and 
Workplace Safety of the Senate Committee on Health, Education, 
Labor and Pensions held a hearing entitled ``Introducing 
Meaningful Incentives for Safe Workplaces and Meaningful Roles 
for Victims and Their Families.'' The panel included: Dr. 
Celeste Monforton, Ph.D., MPH, Lecturer and Researcher, Project 
on Scientific Knowledge and Public Policy, George Washington 
University; Jim Frederick, Assistant Director for Safety and 
Health, United Steelworkers; Tammy Miser, Founder, United 
Support Memorial for Workplace Fatalities; and Warren Brown, 
President, American Society of Safety Engineers.

                     MINE SAFETY AND HEALTH REFORM

                          LEGISLATIVE HISTORY

    Following the Scotia Mine disaster in 1976, Congress 
enacted the Federal Mine Safety and Health Act of 1977 (Mine 
Act), which transferred responsibility for regulation of coal 
and metal and non metal mines from the Interior Department to 
the Department of Labor and established the Mine Safety and 
Health Administration with its own Assistant Secretary to 
enforce the Mine Act. The Mine Act consolidates federal 
regulation of the mining industry, covering coal and non coal 
facilities, that had previously been covered under the Federal 
Metal and Nonmetallic Mine Act of 1966 and the 1969 Coal Act, 
however, it maintained different health and safety standards 
for the two sectors. The Mine Act established the five-member 
Federal Mine Safety and Health Review Commission to review 
citations and orders. The Mine Act expanded miners rights and 
prescribed new enforcement remedies, such as Pattern of 
Violation.
    In the wake of a series of 3 serious mine disasters in 
2006, including an explosion at the Sago Mine in West Virginia 
where 12 men lost their lives, Congress enacted the Mine 
Improvement and New Emergency Response Act of 2006 (MINER Act), 
P.L. 109-236). This legislation required mine operators to 
develop emergency response plans, install tracking and 
communications which will allow miners to communicate and be 
found after an accident, provide post accident breathable air 
to trapped miners in the event of an accident, and have two 
rescue teams not less than an hour away. The legislation 
established minimum civil penalties for unwarrantable failure 
violations, and established flagrant violations as a new 
category.

                       110TH CONGRESS (2007-2008)

                HEARINGS IN THE HOUSE OF REPRESENTATIVES

Committee on Education and Labor

    On March 28, 2007, the Committee on Education and Labor 
held a hearing entitled ``Protecting the Health and Safety of 
America's Mine Workers.'' The panel included: Jim Dean, 
Director of Extension and Outreach of the West Virginia 
University College of Engineering and Mineral Resources; 
Deborah Hamner, wife of a deceased miner; Charles Scott Howard, 
miner; Chuck Knisell, miner; Melissa Lee, wife of a deceased 
miner; Tony Oppegard, attorney; Cecil Roberts, President of the 
United Mine Workers of America; and Bruce Watzman, Vice 
President of Safety and Health at the National Mining 
Association. At the hearing, the Committee examined the role of 
MSHA in the enforcement of health and safety standards in 
mines.
    On May 15, 2007, the Subcommittee on Workforce Protections 
of the Committee on Education and Labor heard testimony 
relating to ``Private Sector Whistleblowers: Are There 
Sufficient Legal Protections?'' in response to reports of the 
blacklisting of miners who spoke up about workplace safety 
prior to the Sago mine disaster in March, 2007. Witnesses at 
the hearing included: Lloyd Chinn, partner, Proskauer Rose LLP; 
Thomas Devine, Legal Director of the Government Accountability 
Project; Richard Fairfax, Director of Enforcement at OSHA; 
Richard E. Moberly, Assistant Professor and Cline Williams 
Research Chair at the University of Nebraska College of Law; 
John Simon, truck driver; and Dr. Jeffrey Wigand, former 
employee of Brown & Williamson.
    On May 16, 2007, the Committee on Education and Labor held 
a hearing on ``Evaluating the Effectiveness of MSHA's Mine 
Safety and Health Programs.'' Witnesses included: Reps. Nick 
Rahall and Shelley Moore Capito of the Third and Second 
Districts of Virginia, respectively; Dan Bertoni, Director of 
the Education, Workforce, and Income Security Team of the 
Government Accountability Office; Richard Stickler, Assistant 
Secretary of Mine Safety and Health at the U.S. Department of 
Labor; Jonathan Snare, Acting Solicitor of Labor of the U.S. 
Department of Labor; Larry Grayson, Chair of the Department of 
Mining and Nuclear Engineering of the University of Missouri; 
and J. Davitt McAteer, Vice President for Sponsored Programs at 
Wheeling-Jesuit University. At the hearing, the Committee 
considered whether MSHA responded adequately to mine health and 
safety hazards.
    On July 26, 2007, the Subcommittee on Workforce Protections 
of the Committee on Education and Labor held a hearing on 
``H.R. 2768, the S-MINER Act, and H.R. 2769, the Miner Health 
Enhancement Act of 2007.'' The Subcommittee heard testimony 
from Kevin Strickland, Administrator of Coal Mine Safety and 
Health at MSHA; Dennis O'Dell, Safety and Health Director of 
the United Mine Workers of America; James L. Weeks, ScD, CIH, 
of Potomac, Maryland; and Mike Wright, Director of Health, 
Safety and Environment at the United Steelworkers.
    On October 3, 2007, the Committee on Education and Labor 
held a hearing entitled ``The Perspective of the Families at 
Crandall Canyon'' concerning a tragic explosion at the Crandall 
Canyon Mine where six miners lost their lives. The Committee 
heard testimony from Steve Allred, brother of miner Kerry 
Allred; Wendy Black, wife of miner Dale ``Bird'' Black; Michael 
Marasco, son-in-law of miner Kerry Allred; Sheila Phillips, 
mother of miner Brandon Phillips; Cesar Sanchez, brother of 
miner Manuel Sanchez; Jon Huntsman, Jr., Governor of the State 
of Utah; Wayne Holland, International Staff Representative of 
the United Steelworkers; Cecil Roberts, President of the United 
Mine Workers of America; and Bruce Watzman, Vice President of 
Safety, Health, and Human Services at the National Mining 
Association.

                         HEARINGS IN THE SENATE

Committee on Appropriations

    On February 28, 2007, the Subcommittee on Labor, Health and 
Human Services, Education, and Related Agencies of the Senate 
Committee on Appropriations held a hearing entitled, 
``Improving Mine Safety: One Year After Sago and Alma.'' The 
panel included: Richard E. Stickler, Assistant Secretary, Mine 
Safety and Health Administration, Department of Labor; Dr. John 
Howard, Director, National Institute for Occupational Safety 
and Health, Department of Health and Human Services; Cecil 
Roberts, President, United Mine Workers of America; Bruce 
Watzman, Vice President, Safety, Health and Human Resources, 
National Mining Association; J. Davitt McAteer, Esq., Vice 
President of Sponsored Programs, Wheeling Jesuit University; 
and Chris R. Hamilton, Senior Vice President, West Virginia 
Coal Association.
    On September 5, 2007, the Subcommittee on Labor, Health and 
Human Services, Education, and Related Agencies of the Senate 
Committee on Appropriations held a hearing entitled, ``Utah 
Mine Disaster and Preventing Future Tragedies.'' The panel 
included: Richard E. Stickler, Assistant Secretary of Labor, 
Mine Safety and Health Administration, Department of Labor; J. 
Davitt McAteer, Esq., Vice President of Sponsored Programs, 
Wheeling Jesuit University; Cecil E. Roberts, President, United 
Mine Workers of America; and Bruce Watzman, Vice President, 
Safety, Health and Human Resources, National Mining 
Association.

Committee on Health, Education, Labor and Pensions

    On May 22, 2007, the Subcommittee on Employment and 
Workplace Safety of the Senate Committee on Health, Education, 
Labor and Pensions held a hearing entitled ``Promises or 
Progress: The Miner Act One Year Later.'' The panel included: 
Jeffrey Kohler, Ph.D., Associate Director for Mining, National 
Institute for Occupational Safety and Health; Dennis O'Dell, 
Administrator, Department of Health and Safety, United Mine 
Workers of America; S.L. Bessinger, Ph.D., P.E., Engineering 
Manager, BHP Billiton, San Juan Coal Company, Waterflow, NM; 
and Bruce Watzman, Vice President, Safety, Health and Human 
Resources, National Mining Association.
    On October 2, 2007, the Senate Committee on Health, 
Education, Labor and Pensions held a hearing entitled ``Current 
Mine Safety Disasters: Issues and Challenges.'' The panel 
included: Kevin Stricklin, Administrator for Coal Mine Safety 
and Health, Mine Safety and Health Administration; Jeffrey 
Kohler, Associate Director for Mine Safety and Health Research; 
Joseph Osterman, Managing Director, National Transportation 
Safety Board; Dennis O'Dell, Administrator for Health and 
Safety, United Mine Workers of America; Robert Ferriter, 
Director of Mine Safety and Health Program, Colorado School of 
Mines; and Bruce Watzman, Vice President for Safety and Health, 
National Mining Association.
    On June 19, 2008, the Subcommittee on Employment and 
Workplace Safety of the Senate Committee on Health, Education, 
Labor and Pensions held a hearing entitled ``Two Years After 
the Miner Act: How Safe is Mining Today?'' The panel included: 
Richard E. Stickler, Acting Assistant Secretary of Labor for 
Mine Safety and Health; Jeffrey Kohler, Ph.D., Associate 
Director for Mining and Construction, National Institute for 
Occupational Safety and Health (NIOSH); Dennis O'Dell, 
Administrator of Occupational Health and Safety, United Mine 
Workers of America; and Bruce Watzman, Vice President, Safety 
and Health, National Mining Association.

                       111TH CONGRESS (2009-2010)

                HEARINGS IN THE HOUSE OF REPRESENTATIVES

Committee on Education and Labor

    On February 23, 2010, the Committee on Education and Labor 
held a hearing entitled, ``Reducing the Growing Backlog of 
Contested Mine Safety Cases.'' The panel included: Mary Lu 
Jordan, Chair of the Federal Mine Safety and Health Review 
Commission; Joe Main, Assistant Secretary of Labor for MSHA, 
U.S. Department of Labor; Cecil Roberts, President of the 
United Mine Workers of America; and Bruce Watzman, Senior Vice 
President of Regulatory Affairs at the National Mining 
Association.
    On May 24, 2010, the Education and Labor Committee held a 
field hearing in Beckley, West Virginia, concerning the 
explosion at the Upper Big Branch coal mine that killed twenty-
nine workers. The hearing was entitled ``The Upper Big Branch 
Mine Tragedy: Testimony of Family Members,'' and the panel 
included: Hon. Joe Manchin III, Governor of West Virginia; 
Eddie Cook, uncle of Adam Morgan; Gary Quarles, father of Gary 
Wayne Quarles; Alice Peters, mother-in-law of Edward ``Dean'' 
Jones; Steve Morgan, father of Adam Morgan; Clay Mullins, 
brother of Rex Mullins; and Stanley ``Goose'' Stewart, Upper 
Big Branch miner.

                         HEARINGS IN THE SENATE

Committee on Appropriations

    On May 20, 2010, the Subcommittee on Labor, Health and 
Human Services, Education, and Related Agencies of the Senate 
Committee on Appropriations held a hearing entitled ``Investing 
in Mine Safety: Preventing Another Disaster.'' The panel 
included: Mary Lu Jordan, Chair, Federal Mine Safety and Health 
Review Commission; Cecil Roberts, President, United Mine 
Workers of America; Don L. Blankenship, Chairman and CEO, 
Massey Energy Company; John Howard, M.D., Director, National 
Institute for Occupational Safety and Health; Joe Main, 
Assistant Secretary of Labor for Mine Safety and Health; and M. 
Patricia Smith, Solicitor of Labor.

Committee on Health, Education, Labor and Pensions

    On April 27, 2010, the Senate Committee on Health, 
Education, Labor and Pensions held a hearing entitled ``Putting 
Safety First: Strengthening Enforcement and Creating a Culture 
of Compliance at Mines and Other Dangerous Workplaces.'' The 
panel included: Joe Main, Assistant Secretary of Labor for Mine 
Safety and Health; Cecil Roberts, President, United Mine 
Workers of America; Jeff Harris, Mine Worker, Fraley, WV; Wes 
Addington, Deputy Director, Appalachian Citizens' Law Center; 
Bruce Watzman, Senior Vice President, Regulatory Affairs, 
National Mining Association; David Michaels, Assistant 
Secretary of Labor for Occupational Safety and Health; Peg 
Seminario, Director of Occupational Safety and Health, AFL-CIO; 
Holly Shaw, Chairperson, Philaposh Tri-state Family Support 
Group; Dr. Michael Brandt, Board President, American Industrial 
Hygiene Association; and Kelli Heflin, Coordinator of 
Regulatory Compliance and Safety Manager, Scott's Liquid Gold, 
Denver, CO.

 INTRODUCTION AND CONSIDERATION OF THE ROBERT C. BYRD MINER SAFETY AND 
                         HEALTH ACT, H.R. 5663

    On July 1, 2010, Congressman George Miller (D-CA), along 
with Congresswoman Lynn Woolsey (D-CA) and Congressman Nick 
Rahall (D-WV) introduced H.R. 5663, a bill containing major 
reforms responding to the serious health and safety concerns 
raised by workers and families of Massey Energy's Upper Big 
Branch Mine tragedy that killed 29 miners and other recent 
workplace tragedies.

Committee on Education and Labor Consideration of H.R. 5663

    On July 13, 2010, the Committee on Education and Labor held 
a hearing on H.R. 5663, the Robert C. Byrd Miner Safety and 
Health Act. The Committee heard testimony concerning the 
ability of MSHA to effectively protect miners' lives, hold mine 
operators accountable for putting miners in unnecessary danger, 
and expanding protections to all workers by strengthening OSHA. 
The hearing was entitled ``H.R. 5663, Miner Safety and Health 
Act of 2010,'' and the panel included: Joe Main, Assistant 
Secretary of Labor for Mine Safety and Health, U.S. Department 
of Labor; David Michaels, Assistant Secretary of Labor for 
Occupational Safety and Health, U.S. Department of Labor; 
Patricia Smith, Solicitor of Labor, U.S. Department of Labor; 
R. Larry Grayson, Professor of Mine Engineering at Penn State 
University; Lynn Rhinehart, General Counsel of the AFL-CIO; 
Cecil Roberts, President of the United Mine Workers of America; 
Jonathan Snare, partner at Morgan Lewis, on behalf of the 
Coalition for Workplace Safety; Stanley ``Goose'' Stewart, a 
West Virginia coal miner; and Bruce Watzman, Senior Vice 
President for Regulatory Affairs at the National Mining 
Association.

Committee on Education and Labor Mark-up of H.R. 5663

    The Full Committee met on July 21, 2010 to mark up H.R. 
5663. The Committee passed by voice vote an amendment in the 
nature of a substitute offered by Chairman George Miller (D-
CA). There were seven other amendments offered and debated. Of 
the amendments offered, four passed and three failed.

The Robert C. Byrd Miner Safety and Health Act

    By a vote of 30-17, H.R. 5663 was reported favorably to the 
House with an amendment in the nature of a substitute.
    The Miller amendment in the nature of a substitute contains 
the following modifications to the introduced version of H.R. 
5663:
    Title I: Slightly narrows the scope of Secretary's subpoena 
authority from ``any function under this Act'' to 
``investigations and inspections;'' allows miner 
representatives to participate in any accident investigation 
conducted by the Secretary, including the right to participate 
in interviews, unless the Secretary, in consultation with the 
Attorney General, concludes that such involvement ``would 
interfere with or adversely impact a criminal investigation 
that is pending or under investigation;'' provides mine 
operators with the right to have mine inspector review recent 
evaluation for pattern status during the course of a regular 
inspection; eliminates the obligation for operators to report 
the injuries and hours of work for its contractors and instead 
contractors will be obligated to report hours of work and 
injuries broken out by each mine where they work.
    Title II: Eliminates the statutory definition of an S&S; 
violation as one which has ``a reasonable possibility of an 
injury, illness or death; requires that accidents as well as 
citations and orders must be counted in any designation of a 
mine for pattern status; requires MSHA to screen mines for 
pattern status not less than once every 6 months; expands 
transparency on methods used to determine pattern status; fee 
provisions are modified; and GAO will study the timeliness of 
MSHA mine plan approvals and make recommendations.
    Title III: Eliminates the increase in civil penalties for 
significant and substantial (S&S;) violations; adds a new felony 
provision for instances where the operator's actions knowingly 
exposed miners to a significant risk of serious injury or 
illness or death, which is punishable by a fine of not more 
than $1,000,000, or by imprisonment for not more than 5 years, 
or both; if the operator is found to have knowingly tampered 
with or disabled a required safety device which exposed miners 
to a significant risk of serious injury or illness or death, or 
if the conviction is for a violation committed after the first 
conviction, punishment shall be by a fine of not more than 
$2,000,000, or by imprisonment for not more than 10 years, or 
both; modifies the provision on civil and criminal liability of 
officers, directors and agents, so that liability will apply 
when an operator's policies or practices ``result in'' 
violations, instead of merely ``contribute to'' a violation; 
expands criminal penalty for retaliation to cover reporting 
safety violations to state mine safety agencies, as well as 
MSHA or law enforcement officials; modifies provision that 
makes advance notice of an inspection a felony by requiring a 
showing of intent to impede, interfere with or adversely affect 
the outcome of an inspection for any person who knowingly gives 
or causes to give advance notice.
    Title IV: Expands protected activity for whistleblowers to 
cover a miner reporting any injury or illness to an operator; 
narrowed payment to miners idled by a MSHA-ordered mine 
closure: first, for first two shifts, miners are paid for 
balance of the shift when mine is closed, and four hours pay 
for subsequent shift; second, limits payments to idled miners 
to a maximum 60 days; third, operators will not have to pay 
miner if they closed mine in advance of an MSHA order, if the 
operator withdrew miners promptly after discovering a hazard 
and notified MSHA as required, however, if they did not 
promptly withdraw miners, and waited until MSHA was about to 
issue a closure order, they must pay miners for up to 60 days; 
and expedites mine operators due process rights by providing 
mine operators with an expedited hearing and judgment within 30 
days on any order which closes a mine and triggers payments to 
miners.
    Title V: Provides added flexibility to coal mine operators 
on implementing a mandatory pre-shift review of mine conditions 
to incoming miners; extends time for MSHA to issue interim rule 
from 90 days to 180 days, and requires MSHA to issue a final 
rule in 2 years; prevents MSHA from using measurements of rock 
dust using these new monitors as a basis for enforcement until 
the new technology is certified as accurate and reliable for 
enforcement purposes and MSHA issues a final rule; establishes 
a consultation process for operators, vendors, states and labor 
to have input into a NIOSH study on the feasibility of using 
continuous atmospheric monitoring systems in underground mines; 
extends time for study from 180 days to one year; clarifies 
requirement related to technology to control respirable dust, 
to accommodate concerns that this would mandate reductions 
beyond that established by MSHA regulations; and modifies fee 
collection for certifications to ensure it is budget neutral.
    Title VI: Provides that reforms to the pattern of 
violations and the increased civil penalties for mines on 
pattern of violations will only apply to underground coal mines 
and other underground mines which are gassy.
    Title VII: Reduces the burden of proof on employers to 
obtain a stay of an OSHA order to abate serious or willful 
violation that could cause serious bodily injury or death; 
modifies the nexus required between a violation and bodily harm 
in the criminal provision by requiring the employer to have 
knowingly violated a safety standard which ``caused or 
significantly contributed to'' the injury or death; expands the 
list of those individuals who can request that NIOSH conduct a 
Health Hazard Evaluation (HHE) from only employers and employee 
representatives to also include representatives of ``former 
workers, physicians, another federal agency, or a state or 
local health department'' and also expands the issues that can 
be covered in a HHE to cover to include ``physical agents, 
equipment, or working conditions.''

                   AMENDMENTS CONSIDERED IN COMMITTEE

    The amendment offered by Representative Kline (R-MN) would 
have served as a substitute amendment. It would have 
circumscribed the reforms in the bill such that a number of 
issues would have gone unaddressed. It did not include any 
reforms to the Occupational Safety and Health Act and did not 
address a number of mine safety and health issues, including 
the need for whistleblower reforms and a variety of improved 
enforcement authorities for the agency. The amendment was 
defeated by a roll call vote of 17-30.
    The amendment offered by Representative Shea-Porter (D-NH) 
would codify the MSHA whistleblower hotline and related 
informational materials and would require those materials to be 
distributed as part of the new annual training required under 
Section 505 of the bill. The amendment was passed by voice 
vote.
    The amendment offered by Representative McMorris Rodgers 
(R-WA) would have struck Title VII of the bill i.e., the 
Amendments to the Occupational Safety and Health Act. The 
amendment was defeated by a roll call vote of 17-30.
    The amendment offered by Representative Woolsey (D-CA) 
would authorize NIOSH to enter into collaborative agreements 
with international organizations to explore additional means to 
protect miners. The amendment was passed by voice vote.
    The amendment offered by Representative Price (R-GA) would 
have struck Section 302 and replaced ``knowing'' with 
``willful'' in regards to employer liability. The amendment was 
defeated by a roll call vote of 17-30.
    The amendment offered by Representative Hare (D-IL) would 
dissuade the underreporting of accidents and injuries by 
operators by requiring that accident, injury and illness 
reports to MSHA must be signed by a ``knowledgeable and 
responsible person possessing a certification as determined by 
the Secretary or a state certification program,'' and also 
provide a mechanism for accountability with the person signing 
the report or log by instating that an individual's 
certifications can be revoked for knowingly falsifying reports 
or logs under the bill. The amendment was passed by voice vote.
    The amendment offered by Representative Titus (D-NV) would 
provide OSHA with additional tools to ensure that state plans 
are in compliance by establishing a formal mechanism for OSHA 
to identify a problem with a state plan and compel a remedy 
without beginning the process for withdrawing approval. 
Additionally, the amendment ensures continued application of 
health and safety regulations by providing OSHA with concurrent 
enforcement authority for the duration of the time that a state 
plan is formally remedying deficiencies or being withdrawn and 
provide an opportunity for a public hearing after 30 days 
notice of official federal action. Lastly, the amendment would 
hold federal OSHA accountable for providing strong oversight 
and guidance to state plans by establishing a regular GAO study 
once every five years to look at the effectiveness of state 
plans and the Secretary of Labor's oversight of such plans.

                        III. Summary of the Bill

    H.R. 5663, as amended with the Miller Amendment in the 
Nature of a Substitute, amends the Federal Mine Safety and 
Health Act and the Occupational Safety and Health Act to do the 
following:
     Make Mines with Serious and Repeated Violations 
Safe: Criteria for `pattern of violations' sanctions would be 
revamped for underground coal mines and other `gassy' mines to 
ensure that operators which chronically and repeatedly violate 
mine safety standards or have high accident rates improve 
safety dramatically.
     Ensure Irresponsible Operators are Held 
Accountable: Maximum criminal penalties would be increased for 
underground coal mines, and a sanction is established for mine 
operators who knowingly tamper with or disable safety equipment 
that could kill miners. Operators would be required to pay 
penalties in a timely manner.
     Give MSHA Better Enforcement Tools: MSHA would be 
given the authority to subpoena documents and testimony. The 
agency could seek a court order to close a mine when there is a 
continuing threat to the health and safety of miners. MSHA 
could require more training of miners in unsafe mines. MSHA 
will require contractors, in addition to operators, to report 
accidents and injuries, and hours of work at each mine, and 
those filing reports would be held responsible for their 
accuracy.
     Protect Miners Who Speak out on Unsafe Conditions: 
Protections for workers who speak out about unsafe conditions 
in underground coal and other gassy mines would be strengthened 
and would guarantee that miners wouldn't lose pay for safety-
related closures. In addition, miners would receive protections 
allowing them to speak freely during investigations.
     Modernize Safety Requirements in Coal Mines: 
Increased rock dusting would be required to prevent coal dust 
explosions. Pre-shift reviews of hazards and violations in the 
mine must be communicated to incoming miners to ensure that 
they are not caught unaware. Protocols for continuous 
atmospheric monitoring for methane and carbon monoxide will be 
developed by NIOSH and adopted by MSHA through regulations.
     Increase MSHA's Accountability: The bill provides 
for an independent investigation of the most serious accidents, 
which includes an assessment of whether there are gaps in 
MSHA's oversight or regulation. It asks the Government 
Accountability Office to assess whether there are problems with 
timeliness of mine plan reviews.
     Guarantee Basic Protections in All Other 
Workplaces under OSHA: To ensure that all workplaces have basic 
protections, whistleblower protections would be strengthened, 
criminal and civil penalties would be increased, and hazard 
abatement would be sped up. In addition, victims of accidents 
and their family members would be provided greater rights 
during investigations and enforcement actions. OSHA would be 
allowed to assert concurrent enforcement jurisdiction in states 
with OSHA state plans, if the state is failing to maintain 
protections for workers that is at least as effective as 
federal OSHA.

                   IV. Statement and Committee Views

    This bill provides solutions to four major sets of problems 
in the area of workplace health and safety:

(1) IMPROVING SAFETY STANDARDS AND PRACTICES TO PREVENT FATALITIES AND 
                                INJURIES

    The Mine Act and the OSH Act were designed to require 
employers to take responsibility for the safety and health of 
their employees. But some employers have found ways to exploit 
weaknesses in the law or view existing penalties as merely a 
cost of doing business. Any serious attempt to prevent 
fatalities and injuries must start with strengthening 
employers' incentives to protect workers from safety and health 
hazards.

 (2) IDENTIFYING DANGEROUS PRACTICES AND VIOLATIONS BEFORE FATALITIES 
                           AND INJURIES OCCUR

    MSHA and OSHA cannot be present at every mine or every 
workplace at all times and identify every potential safety or 
health hazard. They must rely, in part, on employees to report 
dangerous conditions. Workers who report hazards to their 
employer or the government all too often risk losing their 
jobs, sacrificing career advancement, or suffering other 
adverse actions. The incentive structure needs to be reformed 
so that workers are empowered to identify problems and insist 
that they be fixed--and to do so free from fear. Both MSHA and 
OSHA must have the tools they need to obtain information to 
adequately conduct inspections and protect workers.

(3) IMPROVING RULES AND ADJUDICATIVE PROCEDURES TO COMPEL EMPLOYERS TO 
                            REMEDY PROBLEMS

    MSHA and OSHA lack the authority they need to cause 
employers who continually put workers' lives at risk to change 
their behavior. For example, the well-documented shortcomings 
of the current pattern of violations process for underground 
mines show that it is too easy for even the worst offenders to 
avoid the heightened enforcement regime envisioned by Congress 
in enacting the Mine Act in 1977. Indeed, no mine has ever been 
placed in pattern status.

 (4) USING CIVIL AND CRIMINAL PENALTIES TO BRING CHRONIC SCOFFLAWS TO 
                                JUSTICE

    Congress must increase and refine the civil and criminal 
penalty regime to ensure that employers do not knowingly or 
persistently put the lives of their workers at risk. These 
penalties should extend to individuals, including high-level 
management, who make decisions about the safety of workers, and 
the penalties must be significant enough to deter employers 
from putting their workers' safety and health at risk.

Problems and Solutions Addressed by Selected Sections of H.R. 5663

    The sections below lay out the problems in health and 
safety enforcement identified by the bill, including how the 
bill addresses each problem. The description of the solutions 
refers to H.R. 5663 as amended in Committee, with the Miller 
Amendment in the Nature of a Substitute. It should be noted 
from the outset that the Amendment in the Nature of a 
Substitute limited the applicability of H.R. 5663 to 
underground coal mines and underground metal/non-metal mines, 
which are gassy, as well as any surface mines physically 
connected to such underground mines. These classes of mines, 
with their lethal mix of combustible gas or coal dust, enclosed 
spaces, and myriad ignition sources, are the most dangerous in 
terms of their potential for breakdowns with catastrophic 
consequences, like that at Upper Big Branch mine on April 5, 
2010. Thus, the changes in the law proposed below would apply 
only to such mines.

       Title I--Additional Inspection and Investigation Authority


             SEC. 101--INDEPENDENT ACCIDENT INVESTIGATIONS

    Problem: The Mine Safety and Health Administration (MSHA) 
conducts investigations of mine accidents, including actions or 
inactions by the agency's own employees. Unless a state 
convenes an independent investigative panel, there is no agency 
which conducts independent review of the root cause and 
assessment of whether there were regulatory or organizational 
failures. In other sectors, independent agencies, such as the 
Chemical Safety Board, conducts root cause investigations for 
accidents at chemical plants and oil refineries which are 
covered by the Occupational Safety and Health Administration 
(OSHA). For major accidents, public confidence is enhanced by 
an independent assessment of the accident's root cause, a 
review of MSHA's investigation, an evaluation of whether 
actions or inaction by MSHA could have been a contributing 
factor, and independent recommendations to prevent a 
recurrence.
    Solution: H.R. 5663 requires a panel independent of MSHA--
appointed by the Secretary of Health and Human Services (HHS) 
and chaired by staff from the Office of Mine Safety and Health 
within the National Institute for Occupational Safety and 
Health (NIOSH)--to conduct an investigation of any mine 
accident involving 3 or more deaths, or for other accidents 
that the HHS Secretary deems warranted. Each 5-member panel 
must include members with expertise in accident investigations, 
mine engineering, or mine safety and health; and include one 
individual who represents mine operators and one representative 
of a labor organization that represents miners. The panel is 
charged with investigating the root causes and contributing 
factors of the accident, including acts or omissions by MSHA; 
identifying the strengths and weaknesses in MSHA's accident 
investigation; and making recommendations to prevent 
recurrence. These investigations will be conducted concurrently 
with MSHA's accident investigations. Within 90 days of 
enactment, the Secretary of HHS must establish procedures to 
ensure the consistency and effectiveness of these 
investigations. Within 90 days of enactment HHS and the 
Secretary of Labor shall enter into a Memorandum of 
Understanding to coordinate functions and provide the Panel 
with access to the Secretary's subpoena powers, as needed.

 SEC. 102--SUBPOENA AUTHORITY AND MINER RIGHTS DURING INSPECTIONS AND 
                             INVESTIGATIONS

    Problem: MSHA lacks general authority to subpoena witnesses 
or documents under the Federal Mine Safety and Health Act of 
1977 (Mine Act). The agency may only issue subpoenas as part of 
a public hearing related to an accident investigation. When 
MSHA is able to speak with miners, mine operators have sought 
to inject themselves into the process--chilling the flow of 
information.
    Solution: H.R. 5663 would authorize MSHA to subpoena 
documents and testimony in carrying out investigations or 
inspections. It also clarifies that MSHA (or DOL attorneys) can 
interview mine employees and other individuals with relevant 
information privately without the presence, involvement, or 
knowledge of the operator, his agent, or attorney, provided 
that an individual may bring his own attorney to any interview. 
OSHA already has both of these authorities.\1\
---------------------------------------------------------------------------
    \1\OSHA's subpoena powers and the right to privately interview 
employees are provided in Section 8(a) and 8(b) of the Occupational 
Safety and Health Act of 1970, 29 U.S.C. 657(a) and 29 U.S.C. 657(b).
---------------------------------------------------------------------------

             SEC. 103--DESIGNATION OF MINER REPRESENTATIVE

    Problem: Only a miner can designate someone to be his or 
her representative under current law. Over the years, many 
miners have been trapped in mine accidents, such as the 2002 
accident at the Quecreek mine in which 9 miners were trapped 
underground for 77 hours. All of the miners survived, but the 
miners were trapped incommunicado, so they and their families 
were left out of the decisions directing their recovery. 
Similarly, the families of the six miners trapped in the 
Crandall Canyon mine in Utah after the roof collapsed had 
little involvement in the decisions made during the rescue 
operations. Although the miners died (their bodies are still in 
the mine today), their families deserved to have a say in the 
rescue and recovery process.
    Solution: H.R. 5663 allows the closest relative of a miner 
who is trapped in an underground mine to designate a 
representative on behalf of the trapped miner.

      SEC. 104--ADDITIONAL AMENDMENTS RELATING TO INSPECTIONS AND 
                             INVESTIGATIONS

    Problem: In hearings before the Committee, miners testified 
that MSHA inspectors routinely inspect mines during regular 
business hours, rarely during late night shifts or on weekends. 
Mine operators know this, and those who are unscrupulous will 
take more risks during the hours when they are not likely to be 
inspected in order to increase production. Witnesses at the 
July 13, 2010, Committee hearing raised questions about the 
reliability of the accident and injury reports from 
operators.\2\ Moreover, reliable accident and injury reporting 
is needed from both operators and contractors, if MSHA is going 
to rely upon accident rates as one criteria to trigger pattern 
status at a mine. MSHA must be physically present at a mine to 
issue a ``control order'' under Section 103(k) of the Mine Act, 
which is needed to protect the lives of miners after an 
accident. Mine inspectors cannot always be close by a mine site 
right after an accident, and should be able to phone in a 
control order until they arrive at the mine site.
---------------------------------------------------------------------------
    \2\H.R. 5663, the Miner Safety and Health Act: Hearing before the 
H. Comm on Education and Labor, 111th Cong. (2010) (testimony of Cecil 
Roberts and testimony of Stanley ``Goose'' Stewart), http://
edlabor.house.gov/hearings/2010/07/hr-5663-miner-safety-and-
healt.shtml.
---------------------------------------------------------------------------
    Solution: H.R. 5663 requires MSHA to regularly inspect 
mines during all shifts and days of the week when miners are 
present; mandates that contractors and operators report 
accidents, injuries, and man-hours worked at each mine; and 
requires operators and contractors to have a knowledgeable and 
certified individual sign reports as accurate and complete, 
under penalties of revocation of a certification. Section 
103(k) of the Mine Act removes the requirement for MSHA to be 
present when issuing a control order.

                Title II--Enhanced Enforcement Authority


      SEC. 202--A PATTERN OF RECURRING NONCOMPLIANCE OR ACCIDENTS

    Problem: In the last decade, over 600 miners have been 
killed while working in coal and metal/nonmetal mines,\3\ 
including 190 underground coal miners.
---------------------------------------------------------------------------
    \3\Http://www.msha.gov/stats/charts/coaldaily.asp; http://
www.msha.gov/statscenturystats/mnmstats.asp.
---------------------------------------------------------------------------
    Twenty-nine (29) miners were killed on April 5, 2010, at 
the Upper Big Branch Mine (UBB)\4\ operated by Massey Energy in 
Montcoal, West Virginia in the worst coal mine disaster in 
America in 40 years. The blast killed miners over a 2-mile area 
and twisted rail car tracks like pretzels. The death toll is 
the highest in an American mine since a 1970 explosion killed 
38 at Finley Coal Company, in Hyden, KY. In 2009, there were 34 
mining deaths in coal and metal/non metal mines, a record 
low.\5\ Through July 12 of this year, there have been a total 
of 52 mining deaths.\6\
---------------------------------------------------------------------------
    \4\In addition to UBB, 2 other miners were killed at Massey mines 
so far this year. The UBB mine produced 1.2 million tons of high-value 
metallurgical coal (met coal) in 2009. Production had been ramping at 
this mine, as the demand from China and India for met coal had 
increased. In the first quarter of 2010, UBB produced 432,000 tons 
compared with 182,000 tons for the same period in 2009. UBB had 
approximately 200 mine employees, excluding contractors. Source: Mine 
Quarterly Production Information, Mine Safety and Health 
Administration, 
http://www.msha.gov/drs/ASP/MineAction70002.asp (accessed 7/25/2010).
    \5\Stephen Power, ``Mine Cited on Safety Issues,'' Wall Street 
Journal, April 7, 2010.
    \6\MSHA, ``2010 Comparison of Year-to-Date and Total Fatalities for 
M/NM & Coal,'' last updated 7/12/2010, http://www.msha.gov/STATS/DAILY/
D2010BAR.PDF.
---------------------------------------------------------------------------
    The blast at Upper Big Branch was preceded by a series of 
tragedies in 2006 and 2007--an explosion at the ICG-operated 
Sago mine that trapped 13 mines and killed 12 miners; an 
explosion at the Darby Mine which killed 5 and injured one; the 
Crandall Canyon Mine disaster, which killed 9 (including 3 
rescuers); and a fire that killed two at the Massey-operated 
Aracoma Alma coal mine. In 2008, the Aracoma Coal Company, a 
subsidiary of Massey, agreed to pay $4.2 million in criminal 
fines and civil penalties, and to plead guilty to safety 
violations related to Massey's inadequate response to the 
fire.\7\
---------------------------------------------------------------------------
    \7\Ken Ward, Jr., ``Aracoma Assessed Record Fine,'' West Virginia 
Gazette, December 23, 2008.
---------------------------------------------------------------------------

The UBB Mine Had a History of Repeated and Serious Safety Violations

    While the precise cause of the UBB mine explosion is 
unknown, this mine, and the controlling entity, Massey Energy, 
have a long history of serious safety and health violations, 
which involved high degrees of negligence:
     MSHA cited the UBB mine for 515 violations in 2009 
and 124 in the first 3 months of 2010, with proposed penalties 
totaling $1.1 million. Most of these penalties are being 
contested by Massey. Over 39% of citations issued at UBB in 
2009 were for S&S; violations.\8\
---------------------------------------------------------------------------
    \8\Briefing by the Department of Labor, Mine Safety and Health 
Administration, on Disaster at Massey Energy's Upper Big Branch Mine-
South, April 2010, http://www.msha.gov/PerformanceCoal/DOL-
MSHA_president_report.pdf.
---------------------------------------------------------------------------
     More troubling, MSHA issued 54 ``closure'' orders 
at this mine in 2009, including 49 for ``unwarrantable 
failure'' to correct violations and one for an ``imminent 
danger.'' The mine's rate for these kinds of violations is 
nearly 19 times the national rate, according to MSHA.\9\
---------------------------------------------------------------------------
    \9\Id.; MSHA data, ``Summary of Citations and Orders issued at 
Upper Big Branch Mine-South,'' http://www.msha.gov/PerformanceCoal/
Violation_Summary.pdf.
---------------------------------------------------------------------------
     In 2010, MSHA issued 7 closure orders at UBB, 
including 6 for unwarrantable failure related to improper mine 
ventilation.\10\ For example:
---------------------------------------------------------------------------
    \10\MSHA data, ``Summary of Citations and Orders issued at Upper 
Big Branch Mine-South,'' http://www.msha.gov/PerformanceCoal/
Violation_Summary.pdf.
---------------------------------------------------------------------------
           On January 7, 2010, MSHA found that the mine 
        foreman knew and failed to correct a condition for 
        three weeks which misrouted air so that miners would 
        not have fresh air to escape the mine section in the 
        event of an accident, and could have caused deaths.
           On March 2, 2010, according to MSHA, the 
        mine was not following its ventilation plan to prevent 
        methane build up. The plan required 15,000 cubic feet 
        of air per minute (cfm) flowing through the mine, but 
        MSHA inspectors only found 7,448 cfm.
     In the 12 months prior to the explosion, MSHA 
found 52 violations related to ventilation standards and 
controls and 37 related to accumulations of combustible 
materials. Violations involving mine ventilation and 
combustible materials increase the likelihood of an 
explosion.\11\
---------------------------------------------------------------------------
    \11\Department of Labor data, April 2010.
---------------------------------------------------------------------------
     Between 2005 and 2009, there were 1,298 violations 
and orders issued by MSHA at UBB, and over this time period, 
MSHA increased its inspection hours from 923 to 1,854 per 
year.\12\
---------------------------------------------------------------------------
    \12\Id.
---------------------------------------------------------------------------
    Mine explosions are preventable, and are usually caused by 
the combustion of accumulations of methane combined with coal 
dust.
     Methane gas occurs naturally in coal seams and is 
liberated when coal is mined. The UBB mine released 
approximately 1 million cubic feet per day of methane. 
Sufficient mine ventilation will remove combustible levels of 
methane. Equipment, such as continuous miners, must have 
methane detectors which are designed to automatically turn off 
machinery if methane levels exceed 1%.
     Coal dust is produced by the mining process and is 
10 times as explosive as methane. The Mine Act requires rock 
dusting of the mine floors, roof and walls to prevent coal dust 
from propagating an explosion. However, existing standards 
insufficiently mitigate the risks of coal dust explosions.

Current Mine Act Civil Enforcement Scheme

    The Mine Act authorizes MSHA to cite and issue fines for 
violations of the Act or mandatory health or safety standards. 
A citation usually fixes a time for abatement. If, upon 
subsequent inspection, the mine fails to abate, MSHA can issue 
a withdrawal order directing miners to leave the area until the 
mine abates the violation.
    Level of MSHA Enforcement Actions: In 2009, MSHA issued a 
total of 175,079\13\ citations and orders to all coal and 
metal/nonmetal mines. During this period, MSHA assessed $141.2 
million\14\ in fines, and operators contested 66.3% of these 
monetary penalties.\15\
---------------------------------------------------------------------------
    \13\102,660 of the total citations and orders were for coal mines.
    \14\$103.3 million were for coal mines.
    \15\MSHA, ``Mine Safety and Health at a Glance,'' May 16, 2010, 
http://www.msha.gov/MSHAINFO/FactSheets/MSHAFCT10.pdf.
---------------------------------------------------------------------------
    Significant and Substantial Violations. MSHA inspectors can 
cite a violation as ``significant and substantial'' (S&S;) which 
``is of such a nature as could significantly and substantially 
contribute to the cause and effect of a coal or other mine 
safety and health hazard.'' S&S; violations are a building block 
for escalated enforcement action under the Mine Act. 
Approximately 33% of all citations are S&S.;\16\
---------------------------------------------------------------------------
    \16\Id.
---------------------------------------------------------------------------
    In the event that an operator fails to correct an S&S; 
violation of a mandatory health and safety standard, and it is 
determined that the failure is ``unwarrantable,'' which is 
aggravated conduct characterized by more than ordinary 
negligence, MSHA can issue an ``unwarrantable failure'' order 
(under Section 104(d)(1)) directing the mine to immediately 
withdraw miners from the affected part of the mine until the 
violation is abated.
    Imminent Danger Orders: MSHA has the authority to issue 
imminent danger orders under Section 107 of the Mine Act to 
order operators to withdraw miners if the inspector determines 
``the existence of any condition or practice in a coal or other 
mine which could be reasonably expected to cause death or 
serious physical harm'' before such condition can be abated.
    Pattern of Violations (POV): Congress enacted a remedy to 
address operators that continually and repeatedly pile up 
citations for dangerous conditions, following the Scotia Mine 
Disaster in Letcher County, Kentucky, which killed 23 miners 
and 3 mine inspectors over a 60 hour period in 1976. This mine, 
which was the most gassy mine in Eastern Kentucky, had a long 
and chronic history of safety violations: it had been ordered 
closed 110 times between 1970 and 1976, including 39 times for 
imminent danger conditions. This was the most inspected coal 
mine in Eastern Kentucky, but according to a House Education 
and Labor Committee staff report, ``inspection efforts had 
little impact on correcting Scotia's chronic health and safety 
problems.''\17\
---------------------------------------------------------------------------
    \17\Staff of H. Comm. on Education and Labor, Scotia Coal Mine 
Disaster, March 9 and 11, 1976: A Staff Report ( October 15, 1976), p. 
26.
---------------------------------------------------------------------------
    A new section 104(e) of the 1977 Mine Act set forth 
sanctions for any operator that has a ``pattern of 
violations.'' The Senate committee report on the legislation 
explained:

          Section [104(e)] provides a new sanction which 
        requires the issuance of a withdrawal order to an 
        operator who has an established pattern of health and 
        safety violations which are of such a nature as could 
        significantly and substantially contribute to the cause 
        and effect of mine health and safety hazards. The need 
        for such a provision was forcefully demonstrated during 
        the investigation by the Subcommittee on Labor of the 
        Scotia mine disaster. . . . That investigation showed 
        that the Scotia mine, as well as other mines, had an 
        inspection history of recurrent violations, some of 
        which were tragically related to the disasters, which 
        the existing enforcement scheme was unable to address. 
        The Committee's intention is to provide an effective 
        enforcement tool to protect miners when the operator 
        demonstrates his disregard for the health and safety of 
        miners through an established pattern of 
        violations.\18\
---------------------------------------------------------------------------
    \18\S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977).

    Even though the POV provision ``was intended to provide 
MSHA a powerful tool to deal with mine operators who 
demonstrated, through significant and substantial health or 
safety violations, a disregard for the health and safety of 
miners,'' MSHA did not implement the POV provision for 30 
years--until 2007. MSHA took 13 years to promulgate two pages 
of procedural regulations, and another 17 years to establish 
screening guidelines to identify mines with a ``potential'' 
POV.
    Under this screening guidance issued in 2007, MSHA ``looks 
back'' over a 24-month period to assess whether there is an 
elevated pattern of ``final orders'' for S&S; violations. If the 
operator's compliance record indicates repeated and elevated 
S&S; violations, then MSHA notifies the operator of a 
``potential'' POV and requests a plan to improve compliance. If 
an operator reduces its S&S; violation rate by at least 30% over 
a 90-day period, MSHA allows mines to avoid the statutory POV 
sanction. Otherwise, the operator faces the statutory POV 
sanction: withdrawal order from the affected area of the mine 
for each and every future S&S; violation until the mine has a 
90-day period free from any new S&S; violations.
    Virtually all mines placed on the potential POV reduced 
their S&S; violations by at least 30% in the 90-day period 
following receipt of a potential POV notice.\19\ In 2009, mines 
receiving a potential POV letter reduced their S&S; violation 
rate by 72% over this 90-day period.\20\ After the 90-day 
review period, many mines, including UBB, allowed safety 
conditions to sharply deteriorate, suggesting that improvements 
over such a short period of time were transient and mine 
operators were gaming the system. Moreover, a 30% reduction in 
the rate of S&S; violations did not mean that the mine had 
eliminated a pattern of violations, or that its safety 
performance was above average for the industry.
---------------------------------------------------------------------------
    \19\Jessica Y. Lilly, ``Massey mine faces `pattern of violations' 
status,'' WV Public Broadcasting, May 13, 2010.
    \20\Jean Tarbett Hardiman, ``Area mines show code violations,'' 
Herald-Dispatch, May 1, 2010.
---------------------------------------------------------------------------
    Final Orders and Backlog at the Review Commission: MSHA's 
POV regulations require ``final orders'' to determine whether a 
mine's compliance history triggers a POV sanction.\21\ 
``Citations and orders that are under contest, no matter how 
egregious, are not considered when enforcing'' the POV 
provisions of the Mine Act.\22\ Due to this requirement, MSHA 
must wait for the Federal Mine Safety & Health Review 
Commission (Review Commission) to adjudicate citations or 
review settlements. The Review Commission currently has a 
backlog of over 17,000 cases; it now takes an average of 30 
months before the Review Commission issues a final order.\23\
---------------------------------------------------------------------------
    \21\30 CFR Part 104.3(b) states: ``Only citations and orders . . . 
that have become final shall be used to identify mines with a potential 
pattern of violation under this section.''
    \22\Hearing, supra note 2 (testimony of Joe Main).
    \23\The Review Commission has 14 Administrative Law Judges (ALJs), 
which was increased in FY 10 from only 10 ALJs in FY 2009. The Review 
Commission estimates that 32 ALJs are needed to reduce the backlog over 
an 18 month period. The House and Senate Appropriations Committees are 
working on options to increase funding for the number of ALJs and the 
requisite number of DOL staff necessary to reduce the backlog over an 
18-24 month period.
---------------------------------------------------------------------------
    Many mines with degraded safety records can escape POV 
sanctions by contesting many or all of their S&S; citations 
because they know that, due to the delays at the Review 
Commission, their past history of S&S; violations will never be 
counted over the 24-month look-back period used by MSHA. Mine 
operators increased their contests of S&S; citations from 13% to 
46% between 2006 and 2009, which coincided with MSHA's belated 
implementation of its POV policy and a new civil penalty policy 
which raised the size of fines. ``[S]ome operators contesting 
S&S; violations may be doing so because it delays the finding of 
a pattern, adding to the backlog and delaying MSHA from using 
this enhanced enforcement tool at their mines. As a result 
there are mines that might be on a potential pattern of 
violations, but the backlog has prevented their cases from 
becoming final orders.''\24\
---------------------------------------------------------------------------
    \24\Reducing the Growing Backlog of Contested Mine Safety Cases 
before the H. Comm. on Education and Labor, 111th Cong. (2010) 
(testimony of Joseph A. Main).
---------------------------------------------------------------------------
    MSHA identified at least 48 mines that were not subjected 
to a potential POV in August 2009 due to the absence of final 
orders for S&S; violations (assuming the violations were 
sustained). Massey's UBB mine, which exploded on April 5, was 
on this list of 48 mines.\25\
---------------------------------------------------------------------------
    \25\Committee on Education and Labor press release, ``Chair Miller 
Releases List of Dangerous Mines Escaping Tighter Scrutiny,'' April 14, 
2010.
---------------------------------------------------------------------------
    Given the ease with which operators can avoid placement on 
the POV through a combination of temporary improvements to 
their compliance record and an aggressive legal posture that 
challenges each and every S&S; violation, MSHA has never placed 
a single mine on the POV since the provision was enacted in 
1977.\26\ MSHA's Assistant Secretary, Joe Main, has 
acknowledged that the current ``POV provision is an empty 
vessel'' and it is ``broken by all accounts including 
MSHA's.''\27\
---------------------------------------------------------------------------
    \26\As of July 2010, MSHA has only twice attempted to place a mine 
on full POV status--once with Rockhouse Energy Mining in December 2008 
and once with Massey-owned Knox Creek Coal's Tiller No. 1 Mine in June 
2010.
    \27\Hearing, supra note 2 (testimony of Joseph A. Main).
---------------------------------------------------------------------------
    Some career MSHA staff believe the current POV sanction--a 
withdrawal order for each subsequent S&S; violation--is so 
severe that it could force mines to close. Requirements to get 
off POV--zero S&S; violations in a 90 day period--is nearly 
impossible to achieve for many underground coal mines. This may 
explain why MSHA was slow to implement, and why mine operators, 
when threatened with a POV sanction, spare no legal resources.

Case Study: UBB Mine Repeatedly Escaped Pattern of Violations (POV) 
        Sanctions

    In December 2007, MSHA notified Massey that the UBB mine 
had a potential ``pattern of violations'' (POV) because it had 
204 S&S; citations over the previous 24 months.\28\ However, 
MSHA did not impose a POV sanction. Instead, it gave the mine 
90 days to reduce its rate of S&S; violations by 30%, consistent 
with agency guidance.
---------------------------------------------------------------------------
    \28\Briefing by the Department of Labor, Mine Safety and Health 
Administration, on Disaster at Massey Energy's Upper Big Branch Mine-
South, April 2010, http://www.msha.gov/PerformanceCoal/DOL-
MSHA_president_report.pdf.
---------------------------------------------------------------------------
    The mine reduced its S&S; violations per inspection hour by 
44% during the next 90 days. In a March 25, 2008, letter, 
MSHA's District Manager wrote that a pattern of violations 
``does not exist'' at the mine, even though the mine continued 
to have an S&S; violation rate higher than the industry average. 
Despite subpar performance, MSHA's letter concluded: 
``congratulations on your achievements.''
    After the S&S; violation rate dropped in the first few 
months of 2008, the rate more than doubled the following year. 
UBB had 495 S&S; citations in 2009, a number that would have 
readily put this mine on a potential POV, except that an error 
in MSHA's computer program prevented it from flagging several 
final orders that would have tipped this mine over the 
thresholds established in MSHA's POV guidance.\29\
---------------------------------------------------------------------------
    \29\Id. MSHA contends UBB was the only mine that was not flagged 
for a potential POV. The Education and Labor Committee asked the DOL 
Inspector General to review the reasons the computer program failed, 
and determine if this is the only mine the program failed to flag.
---------------------------------------------------------------------------
    Even without this error, this mine should have been placed 
on a potential POV; however, it escaped this sanction because 
too many S&S; violations in the 24-month look back period were 
caught up in the Review Commission's backlog and could not be 
counted. Massey contested 91% of the dollar amount of its 
assessments for S&S; violations in 2008 and 74% in 2009.\30\
---------------------------------------------------------------------------
    \30\Source: MSHA data provided to the Committee on Education and 
Labor.
---------------------------------------------------------------------------
    UBB was not the only Massey-operated mine with a history of 
repeated violations. Massey mines have been placed on the 
potential POV status 13 times since MSHA started POV screening 
in 2007.\31\ This represents 25% of the 53 coal operations sent 
potential POV notices. In October 2009, 3 of the 10 mines that 
received potential POV notices were controlled by Massey.\32\
---------------------------------------------------------------------------
    \31\Briefing by the Department of Labor, Mine Safety and Health 
Administration, on Disaster at Massey Energy's Upper Big Branch Mine-
South, April 2010, http://www.msha.gov/PerformanceCoal/DOL-
MSHA_president_report.pdf.
    \32\Id.
---------------------------------------------------------------------------
    Solution: MSHA needs new tools to address serial 
recidivists to ensure that mine operators implement safety 
management systems which build a culture of prevention rather 
than a practice of playing catch-me-if-you-can with regulators 
or allowing production to trump safety. Key elements of a new 
system to deal with a pattern of recurring non compliance or 
accidents (hereinafter, the new system is referred to as 
``pattern status'') include:
    (1) Mines with ``significantly poor compliance that results 
in unsafe or unhealthy conditions'' shall be placed in 
``pattern status'' if the mine has a pattern of:
          (i) citations for S&S; violations;
          (ii) citations and withdrawal orders caused by an 
        unwarrantable failure to comply with mandatory health 
        and safety standards;
          (iii) withdrawal orders for imminent danger or 
        withdrawal orders under any other section of the Act;
          (iv) citations for flagrant violations; and
          (v) accidents or injuries; or
          (vi) any combination of these citations, orders, 
        accidents and injuries.
    (2) History of violations will be based on citations, 
instead of final orders. The current system of requiring final 
orders encourages operators to contest their S&S; citations as a 
way to avoid consideration of their past history of 
noncompliance. Operator's rights to contest citations related 
to ``pattern status'' will be addressed through an expedited 
review of citations and orders, if such review is sought, once 
on pattern status. This will ensure that MSHA's efforts to 
protect miners are not handcuffed by delays in the adjudicative 
process.
    (3) Mines with a degraded safety record will be placed in 
pattern status without delays associated with giving notice of 
a potential POV. Instead of advance notice, mine operators (and 
the public) will be provided access to a data base with each 
mine's compliance record and information on how to compare this 
record relative to benchmarks for placing a mine on pattern 
status. During regular inspections, MSHA inspectors, upon 
request from the operator, will review the most recent 
evaluation for pattern status with the operator. This will 
provide operators with sufficient transparency about their 
standing relative to pattern status to avoid having to issue 
potential pattern status letters.
    (4) Once a mine is placed in pattern status, MSHA is 
required to (1) notify the mine operator that it must withdraw 
all miners from the mine; and (2) issue a remediation order 
tailored to the problems at the particular mine within 3 days. 
The remediation order will spell out the scope of mandatory 
improvements, such as implementing safety management systems 
that are effective in sustaining compliance, increased fire 
bossing, additional training or staffing, and pre-requisites to 
restoring production such as correcting violations and 
addressing hazardous conditions.
    (5) The mine-wide withdrawal order will be lifted when the 
Secretary verifies that all violations or conditions have been 
or are being fully corrected as outlined in the remediation 
order and the operator has completed requirements in the 
remedial order, as appropriate, that are prerequisites for 
reopening the mine.
    (6) MSHA will double the number of inspections during 
pattern status from 4 to 8 per year. These mines will be 
subject to performance reviews every 90 days, and must sustain 
improved performance for a full year.\33\ Mines in pattern 
status will pay a fee for these added inspections to cover 
MSHA's costs.
---------------------------------------------------------------------------
    \33\Hearing, supra note 2 (testimony of Larry Grayson). Professor 
Grayson testified that the ``one year remediation process [in H.R. 
5663] coupled with quarterly monitoring of performance should inculcate 
in pattern mines adoption of practices and processes aimed at building 
a safety culture of prevention, which is necessary to eliminate mine 
disasters and ultimately all mine fatalities and injuries.''
---------------------------------------------------------------------------
    (7) Within 90 days, mines placed in pattern status must 
have zero high negligence violations, such as an unwarrantable 
failure violation, and no imminent danger orders, and improve 
compliance so that they meet or exceed the top performing 35th 
percentile for the rate of accidents and S&S; violations by 
mines of similar size and type. Alternatively, mines can reduce 
S&S; violations by 70% provided that such rate is not greater 
than the mean for mines of similar size and type. If mines do 
not achieve or exceed these benchmarks within 90 days, they may 
be subject to a mine-wide withdrawal order until conditions are 
corrected that led to pattern status, and/or MSHA may modify 
the remediation order. Within 180 days, civil penalties will 
double until these performance benchmarks are subsequently met.
    (8) Mines will be removed from pattern status if they have 
zero withdrawal and imminent danger orders, and improve 
compliance to meet or exceed the top performing 25th percentile 
for the rate of S&S; violations and accidents at mines of 
similar size and type. Alternatively, mines can reduce S&S; 
rates by 80%, provided that such rate is not greater than the 
mean for mines of similar size and type. Mines must sustain 
this level of performance, on average, for a one year period to 
get off the pattern status. If the mines do not meet this 
threshold, the pattern status is extended. The goal is to have 
sustained improved safety performance at a level that is well 
above average.
    Rulemaking: To address the urgent problem of establishing a 
credible process to address mines that are endangering miners 
due to consistently poor compliance, MSHA is directed to issue 
an interim final rule within 120 days that contains the 
benchmark criteria to trigger placement of a mine on pattern 
status and to remove a mine from pattern status.
    In developing this rule, MSHA shall calculate and weight 
the rates of accidents, injuries, citations for S&S; violations, 
citations and orders for unwarrantable failure, imminent danger 
orders and citations for flagrant violations over the previous 
180 days. MSHA's rule may also consider other criteria such as 
the mines history of violations, citations, orders and rates of 
accident and injuries outside of the 180 day look back period. 
To establish a consistent basis for comparison, MSHA may 
evaluate these safety indicators relative to inspection hours, 
the number of miners, miner hours worked, the number of 
mechanized mining units, production levels, and whether the 
miners are represented for purposes of collective bargaining. 
The latter factor may disproportionately impact the number of 
citations actually received by a mine relative to other mines, 
to the extent that miners at unionized mines tend to accompany 
MSHA inspectors on inspections and have the added protection of 
just cause employment under a collective bargaining agreement 
against retaliation for identifying safety concerns or 
violations.
    Larry Grayson, a professor of mine engineering at the 
University of Pennsylvania, developed a ``safe performance 
index'' which can help identify high risk underground coal 
mines using rates of citations, S&S; violations, unwarrantable 
failure and imminent danger orders (relative to inspection 
hours) and accident and injuries weighted by severity.\34\
---------------------------------------------------------------------------
    \34\Hearing, supra note 2.
---------------------------------------------------------------------------
    Professor Grayson analyzed the 40 operating long wall coal 
mines in the U.S. using this model for 2009. His model ranked 
the Upper Big Branch mine as the highest risk of any long wall 
mines in his analysis by a wide margin, based largely on a high 
rate of high negligence and imminent danger orders. The 
analysis found that 25% of the long wall mines had received no 
orders for high negligence violations or imminent danger. Given 
the fact that these are high production coal mines, it is clear 
that a zero rate of unwarrantable failure and imminent danger 
orders is an achievable target for mines when placed on pattern 
status. Criteria for placing mines on pattern status in this 
legislation mirror criteria used in the ``safe performance 
index.''
    The safe performance index weighted fatalities and injuries 
equally with violations of safety standards. H.R. 5663 
intentionally refrained from establishing specific weights for 
the criteria used to trigger pattern status. A prescriptive 
one-size-fits-all model specified in legislation may cause MSHA 
to overlook factors that may be relevant. Weighting of criteria 
should account for criteria that serve as advance warning of 
high risk mines. In developing its interim and final 
regulations, the Committee recommends that the Secretary review 
mine accident reports over the past 30 years, and assess which 
indicators would have been helpful in predicting the occurrence 
of accidents or catastrophes. The Secretary should consider the 
methodology and weighting used in the ``safe performance 
index'' as a helpful starting place in developing its threshold 
criteria and weighting.
    MSHA must promulgate a final rule 2 years after the date of 
enactment, which will give the agency 20 months experience in 
implementing its interim final regulation, and such experience, 
coupled with input from the public during rulemaking, can help 
inform any proposed changes in a final rule.
    Not less than once every six months, MSHA must identify 
mines which meet the criteria to trigger pattern status.
    MSHA has the discretion to not place an otherwise 
qualifying mine in pattern status if it certifies that there 
are mitigating circumstances wherein the operator has already 
implemented remedial measures that have reduced risks to the 
point that such risks are not longer elevated, and has taken 
sufficient measures to ensure that elevated risk will not 
recur. To provide transparency, MSHA must publish the written 
finding that there are mitigating circumstances that would 
preclude placing the mine on pattern status within 10 days on 
the web site for MSHA and provide copies to the House Committee 
on Education and Labor and the Senate HELP Committee.
    MSHA may reinstate a withdrawal order if an operator fails 
to comply with the remediation order while in pattern status. 
MSHA can modify the remediation order or extend deadlines, but 
only on a showing by the operator that the operator took all 
measures to comply with the order and only if it was prevented 
from doing so by factors outside its control.
    During pattern status, MSHA is authorized to communicate 
with miners (outside the presence of operators) about 
conditions in the mine, and also to advise them of their rights 
under the Act. Mine operators can obtain an expedited review 
from the Review Commission.
    MSHA must establish and maintain a publicly available, 
easily searchable, electronic database with the information the 
Secretary uses to establish pattern status and disclose mines 
placed in pattern status within 7 days of such placement, and 
provide guidance to assist operators and the public in 
assessing each mine's performance relative to criteria set 
forth in regulations.

                     SEC. 203--INJUNCTIVE AUTHORITY

    Problem: The Secretary currently has some authority to seek 
an injunction against a recalcitrant mine operator under 
Section 108(a)(2) of the Mine Act. The existing injunctive 
provision authorizes MSHA to ask a federal court for injunctive 
relief if it believes that a mine operator was engaged in a 
``pattern of violations of . . . health or safety standards'' 
that, in MSHA's judgment, constitutes a continuing hazard to 
miner health or safety. However, because of the provision's 
interaction with the Mine Act's administrative law provisions, 
this potentially useful authority has never been invoked. The 
provision presents several difficulties in that it 1) could be 
construed to require MSHA to establish a ``pattern'' which, 
using the existing POV provisions of Section 104(e), has proved 
difficult for MSHA to apply at all, and 2) limits the basis for 
a ''pattern'' to violations of health or safety standards. The 
flexible tool of an injunction, freed from any confusion 
associated with administrative law provisions, is needed to 
allow MSHA to propose and enforce remedial and preventive 
measures to address the unique circumstances at a particular 
mine. Such flexibility would allow MSHA to act quickly when 
problems arise and allow a tailored, reasonable response to 
unsafe conditions. Such dynamic response could save lives, even 
when other aspects of the Mine Act do not apply, are not 
triggered, or are otherwise insufficient. The Secretary should 
be authorized to seek, and courts should be authorized to 
grant, appropriate injunctive relief.
    Solution: Section 203 of the Act would amend and clarify 
the Secretary's authority to seek and obtain injunctive relief 
from a federal court under Section 108(a)(2) of the Mine Act. 
This revision would allow this relief in cases where the mine 
operator is a habitual violator of health and safety standards. 
The bill addresses both difficulties cited above. First, it 
replaces the term ``pattern'' with the term ``course of 
conduct,'' which is clearer, simpler, and more accurate in 
describing the kind of operator behavior that MSHA's injunctive 
authority is intended to correct. Second, it specifies that the 
kind of behavior that will support injunctive relief is not 
limited to violations of health or safety standards. Any time a 
mine operator's course of conduct presents a ``continuing 
hazard,'' the Secretary would be authorized to obtain equitable 
relief on behalf of miners. This change would make clear that 
injunctive relief is a separate track that may be invoked in 
appropriate cases without regard to any administrative 
proceedings that may or may not be ongoing. The Secretary would 
have full use of a flexible tool, while the due process rights 
of mine operators would be fully protected, because the tool 
would only be invoked through a proceeding in U.S. District 
Court.

               SEC. 204.--REVOCATION OF APPROVAL OF PLANS

    Currently, even when MSHA finds that crucial data used to 
approve a mine plan is inaccurate, or that some post-approval 
event has significantly altered the assumptions upon which the 
plan was based, it does not have the authority to require an 
operator to modify the plan. This authority and flexibility is 
needed to prevent catastrophes before they occur. For example, 
four days prior to the roof collapse at the Crandall Canyon 
mine in 2007 in which six miners and three rescue workers were 
killed, there was a massive ``bounce'' (the shifting of the 
earth above a mine that relieves the pressure produced when a 
seam of coal is removed).\35\ Although the bounce significantly 
altered the conditions at the mine, and may not have been 
properly reported, even had MSHA known about the severity of 
the bounce and its implications for the mine's roof control and 
other plans, MSHA would not have been able to require the mine 
to alter its plans.
---------------------------------------------------------------------------
    \35\Mike Gorrell, ``Mine Disaster: What Really Happened Inside 
Crandall Canyon?'' Salt Lake Tribune, August 1, 2008.
---------------------------------------------------------------------------
    When MSHA can no longer accept a provision of an approved 
plan, cannot approve a provision in a new plan, or cannot 
approve a proposed change to an approved plan, its 
representatives discuss the identified plan deficiency with the 
mine operator in an effort to obtain their agreement to 
voluntarily modify the plan. The bill would not eliminate these 
communications or other efforts to informally reach agreement 
on changes to mine plans. However, if a mine operator is 
unwilling to make modifications that MSHA finds are necessary, 
current case law requires MSHA to go through a burdensome 
process involving two formal notices of insufficiency before it 
can issue a citation for a violation of the Mine Act and begin 
to rectify the problem.
    Solution: This section authorizes the Secretary to revoke 
mine plans and order miners withdrawn from a mine if the 
original plan contained inaccurate information, or there have 
been material changes in circumstances at the mine, and the 
inaccuracies or changes constitutes a health or safety hazard 
to miners. It also provides for a more expedient revocation 
process when the health and safety of miners is at risk due to 
a plan that is out of compliance with applicable standards or 
does not address current conditions in a mine. The bill does 
not eliminate a mine operator's right to contest MSHA's 
determination that a mine plan should be revoked.

 SEC. 205--CHALLENGING A DECISION TO APPROVE, MODIFY, OR REVOKE A COAL 
                           OR OTHER MINE PLAN

    Problem: Although case law has established the ``arbitrary 
and capricious'' standard as the basis for review of MSHA's 
regulations,\36\ the Mine Act does not specify what legal 
standard applies to MSHA decisions to approve, modify, or 
revoke mine plans. There has been disagreement about what 
standard of review the Review Commission should apply. In 
reviewing MSHA's mine plan decisions, the D.C. Circuit Court of 
Appeals found that MSHA's decision to impose certain 
requirements in a ventilation plan was subject to the arbitrary 
and capricious standard. In Peabody Coal Company v Federal Mine 
Safety and Health Review Commission, 111 F.3d 963 (1997),\37\ 
the Court upheld MSHA's decision to require ventilation during 
roof bolting in the mine's plan, and denied the coal company's 
petition to overturn MSHA's decision because it was not 
``arbitrary and capricious.''
---------------------------------------------------------------------------
    \36\See: National Mining Association v. Mine Safety and Health 
Administration and Secretary of Labor, 116 F.3d 520 (DC Cir. 1997)
    \37\This D.C. Circuit opinion was not published, but has been 
included in the record for the July 13, 2010 legislative hearing.
---------------------------------------------------------------------------
    Solution: H.R. 5663 codifies that the standard of review 
for MSHA's mine plan decisions is the ``arbitrary and 
capricious'' standard, the same standard used to review health 
and safety standards. This standard gives appropriate deference 
to MSHA's expertise while preserving mine operators' due 
process rights.

                          Title III--Penalties


                       SEC. 301--CIVIL PENALTIES

Penalties for Failure to Improve Performance While on Pattern Status

    Problem: Mine operators, whose mines are placed in pattern 
status because they repeatedly violate safety and health 
standards and place the lives of miners in jeopardy, must be 
given strong financial incentives to change their behavior.
    Solution: H.R. 5363 requires that operators of mines in 
pattern status be assessed double penalties for any violations 
if, after 180 days in pattern status, the mine fails to improve 
its safety performance to meet the benchmarks established in 
Section 202 of this legislation.

Penalties for Retaliation Against Miners for Raising Safety Concerns or 
        Exercising Rights under the Act

    Problem: Testimony presented by five miners and a family 
member of a miner at the Committee's May 24, 2010, field 
hearing in Beckley, West Virginia highlighted the extent to 
which miners fear they will lose their jobs if they report 
unsafe conditions in their mines. This was similar to testimony 
given at the Committee's October 3, 2007, hearing with the 
families of the miners killed in the Crandall Canyon mine 
disaster in Utah and the Committee's Forum on Mine Safety held 
on February 13, 2006. Miners were extremely concerned about 
mine conditions, but they did not feel empowered enough to act. 
These concerns have been repeated by various miners, 
representatives of miners, and others in testimony and 
correspondence. The culture of ignoring and hiding problems in 
mines, coupled with the culture of fear driven by the threat of 
job loss, must be changed. To change this culture, there must 
be sanctions for retaliation against individuals who report 
unsafe conditions or exercise their rights in violation of 
Section 105(c) under the Mine Act.
    Solution: Section 301(c) provides that the Secretary shall 
propose and the Commissions shall assess a civil penalty of not 
less than $10,000 and not more than $100,000 for a violation of 
the anti-retaliation provisions under in Section 105(c) of the 
Mine Act. For any subsequent violation of the anti-retaliation 
provisions, the minimum civil penalty shall be $20,000 and the 
maximum not more than $200,000 during any 3-year period.

   SEC. 302--CIVIL AND CRIMINAL LIABILITY OF OFFICERS, DIRECTORS AND 
                                 AGENTS

    Problem: In dealing with the liability of officers, 
directors, and agents, Section 110(c) of the Mine Act is not 
written broadly or clearly enough to encompass all types of 
business arrangements, and it excludes policies under which 
some mine operators may operate. For example, the current law 
refers to ``corporate operators'' but there are other business 
arrangements, such as limited liability corporations (LLCs), to 
which some have argued that this provision does not apply. 
Under the current law, company agents could knowingly institute 
policies or practices that result in a violation, and then 
shield themselves from liability by claiming that they did not 
actually commit the violation. The existing provisions of 
section 110(c) already make company agents liable if they did 
not carry out the violations but knowingly authorized or 
ordered them.
    Solution: The bill replaces the term ``corporate operator'' 
with ``operator'' so that directors, officers, and agents of 
business entities other than corporations can be found liable 
for violations of mandatory standards or regulations 
promulgated under the Mine Act. It also requires these entities 
to be found liable when such director, officer or agent 
knowingly violates or fails or refuses to comply with any order 
issued under the Act or any order in a final decision under the 
Act. The bill also adds the phrase ``policy or practice'' to 
the activities of the director, officer, or agent that could be 
found to be unlawful. This provision will help protect miners 
from unscrupulous mine directors, officers, or agents who, even 
though they may not directly violate a provision of the Act or 
a mandatory safety or health standard, set in place policies or 
practices at the mine that result in violations. The new, 
expanded version of section 110(c) embodies the same concept as 
the existing provisions--a concept that is crucial to ensuring 
that operator officials who have the authority to affect miner 
safety and health exercise that authority in a way that 
protects the health and safety of miners.

                      SEC. 303--CRIMINAL PENALTIES

    Problem: The current criminal penalties have been 
insufficient to deter irresponsible mine operators who place 
production ahead of safety, provide tip offs about mine 
inspections to alter mine conditions before the inspector 
arrives, or retaliate against miners who raise safety concerns. 
Currently, section 110(d) of the Mine Act makes a first 
instance of a willful violation of a health and safety standard 
a misdemeanor, regardless of the seriousness of the violation. 
Because of the insignificance of this penalty, this provision 
is rarely prosecuted, and the minimal fine a mining company 
faces pales in comparison to the revenue generated each year. 
Effective criminal provisions should be weighted to the 
severity of the potential harm. The current system fails in 
this regard.
    Solution: A new tiered system of criminal penalties for 
knowing violations would come into play under Section 303(a). 
This subsection amends Section 110(d) of the Mine Act. First, 
the intent requirement would change from a ``willful'' (which 
has been interpreted to remove the presumption that ignorance 
of the law is no excuse and in this context is redundant) to a 
``knowing'' violation of a standard. Whether a mine operator 
meant to harm a miner or not and whether the mine operator knew 
about the criminal provision or not, if that operator knew it 
was violating a health or safety standard and did it anyway, 
the law would be violated.
    Keeping with the Committee's goal of punishing wrongdoers 
(and only wrongdoers) in proportion to the possibility that 
their actions or inactions will harm miners, the violators are 
punished using a multi-tiered system. If the operator knowingly 
exposed miners to ``a significant risk of serious injury or 
illness or death,'' then such violation would be a felony 
punishable by a fine of up to $1,000,000, or 5 years 
imprisonment, or both. For a repeat violation of this 
provision, the maximum penalty is increased to $2,000,000, or 
imprisonment for not more than 10 years, or both.
    In addition, if the operator is found to have knowingly 
tampered with or disabled a required safety device which 
exposed miners to a significant risk of serious injury or 
illness or death, or if the conviction is for a violation 
committed after the first conviction of such operator, the 
penalty is up to $2,000,000, or imprisonment for not more than 
10 years, or both.
    If the operator's violation of a health or safety standard 
or MSHA order was not so severe as to have exposed miners to 
``a significant risk of serious injury or illness or death'' or 
to have related to device tampering, then the first conviction 
of a knowing violation would be a misdemeanor punishable by a 
fine of up to $250,000, imprisonment for up to a year, or both. 
Subsequent violations of the same standard or order, however, 
would be felonies punishable by a fine of up to $1,000,000, or 
imprisonment for not more than 5 years, or both.

Advance Notice of Inspections

    Problem: The Committee's May 24, 2010, and July 13, 2010, 
hearings highlighted a problem the Committee has heard about 
with startling frequency: too many mines view MSHA inspections 
as a ``catch-us-if-you-can'' game. All too often, mine 
management instructs employees to notify the miners underground 
when an MSHA inspector arrives at a mine, or even before then, 
so that the miners can (and do) quickly hide troubling 
conditions, implement normally neglected safety measures, or 
otherwise prevent the inspector from getting a true picture of 
conditions at the mine. Gary Quarles, a miner who is employed 
at the Parker Peerless Mine operated by Massey and the father a 
miner killed at UBB, testified on May 24: ``When an MSHA 
inspector comes onto a Massey mine property, the code words go 
out `we've got a man on the property.' Those words are radioed 
from the guard gates and relayed to all working operations in 
the mine. The mine superintendent and foreman communicate 
regularly by phone, and there are signals that require the 
foreman who is underground to answer the phone. That is one way 
that the message is conveyed that an inspector is on the 
property. When the word goes out, all effort is made to correct 
any deficiencies or direct the inspector's attention away from 
any deficiencies.''
    Currently, Section 110(e) of the Mine Act prohibits advance 
notice of an inspection, which is punishable as a misdemeanor, 
with a fine of $1,000, or imprisonment of up to 6 months, or 
both. The Committee understands that the existing criminal 
provision has been rarely, if ever, invoked.
    Solution: Section 303(c) adds a new provision to Section 
110 of the Mine Act to make it a felony for anyone to give 
another person advance notice of an MSHA inspection with the 
intent to impede, interfere with, or otherwise adversely affect 
the inspection. This applies to the person who gave notice and 
to anyone who caused that person to give such notice. This 
felony would be punishable by up to 5 years imprisonment, or a 
fine of $250,000 for an individual, or $500,000 for an 
organization. This intent standard is consistent with other 
obstruction of justice statutes.\38\
---------------------------------------------------------------------------
    \38\See: Obstruction of Justice: an Overview of Some of the Federal 
Statutes that Prohibit Interference with Judicial, Executive, or 
Legislative Activities, Congressional Research Service (December 27, 
2007).
---------------------------------------------------------------------------
    To help prevent anyone from unwittingly violating this law 
and to further support a culture of safety, this section also 
would require mine operators to conspicuously post notices of 
this new felony provision.
    Problem: The culture of retaliation against workers who 
report safety hazards is pervasive in our most dangerous 
workplaces. This notion was made abundantly clear in the May 
24, 2010 field hearing on the Upper Big Branch mine tragedy in 
which miners expressed considerable reluctance about bringing 
safety and health concerns to the attention of MSHA, 
particularly in non-union mines, because they feared 
retaliation.
    Solution: Section 303(b) would make it a felony for anyone 
to knowingly retaliate (e.g., fire, demote, refuse to hire) 
against a person who has reported unsafe conditions or 
violations to appropriate federal or state government officials 
or law enforcement officers. Because this new section would 
criminalize indirect as well as direct harm to miners, a bad 
actor would also violate the law if such person knowingly 
harmed a miner's family, such as through blacklisting, or other 
indirect interest in retaliation for a report the miner made. 
This new crime would be punishable by up to 10 years 
imprisonment and/or a fine of $250,000 for an individual, and 
$500,000 for an organization.

           SEC. 304--COMMISSION REVIEW OF PENALTY ASSESSMENTS

    Problem: The Review Commission does not use the same method 
MSHA uses (applying a standard formula prescribed in 
regulations) to assess penalties. As a result, in reviewing 
citations contested by mine operators and the associated 
penalties, the Review Commission often reduces the penalties 
proposed by the Secretary and may do so in unpredictable ways. 
The consequent uncertainty over appellate outcomes provides an 
incentive for operators to contest most every citation in the 
hopes of obtaining a more favorable formula for penalty 
assessment, regardless of the merits of the appeal itself. GAO 
noted in a 2007 report that, from 1996 to 2006, about 47% of 
the penalties for citations contested by mine operators were 
reduced by the Commission, attorneys from the Department of 
Labor's Solicitor's Office, and MSHA's Conference Litigation 
Representatives (CLRs).\39\ On average, the penalties were 
reduced by about half. Committee staff reviewed several cases 
in which the Commission significantly reduced MSHA's penalties 
and found that the penalties were reduced from 44 percent to 75 
percent. For example, in a case involving a mine operated by 
the Georgia Marble Company, the Commission lowered the 
penalties assessed from $4,015 to $1,600--a 60 % reduction--
although the MSHA inspector determined that, for one citation, 
an injury was ``reasonably likely'' and would result in more 
than one fatality. In his decision, the ALJ stated that, 
``Under the Mine Act, the Secretary's penalty proposals are not 
binding on the Commission's administrative law judges.''
---------------------------------------------------------------------------
    \39\GAO, Better Coordination and Oversight by MSHA and Other 
Federal Agencies Could Improve Safety for Underground Coal Miners, GAO-
07-622 (2007), p. 39. Note: MSHA's data did not allow the number and 
amount of the penalties reduced only by the Commission to be separated 
from the total data on penalties.
---------------------------------------------------------------------------
    Solution: Require the Commission to use the same 
methodology to set penalties that the Secretary uses to assess 
them, except in extraordinary circumstances or where MSHA has 
no point system or other methodology in regulation for a 
penalty assessment (such as special assessments). H.R. 5663 
does this.

         SEC. 305--DELINQUENT PAYMENTS AND PREJUDGMENT INTEREST

    Problem: Mine operators currently have an incentive to 
contest MSHA's citations because they are not required to pay 
interest on the penalties assessed until the violations have 
been adjudicated, and there is a 30 month delay in adjudicating 
cases on average. Mine operators owe over $27 million in 
overdue fines to MSHA, the majority of which are owed by mine 
operators which are still operating the mine for which fines 
are overdue.\40\
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    \40\``Proposed Legislative Changes to Protect the Safety of All 
Workers and Prevent Future Disasters,'' White Paper prepared by the 
offices of Rep. George Miller, Rep. Lynn Woolsey, Rep. Nick Rahall, 
Sen. Harkin, Sen. Murray, Sen. Rockefeller, June 29, 2010. Source: MSHA 
data.
---------------------------------------------------------------------------
    Solution: H.R. 5663 provides prejudgment interest on 
contested fines based on IRS's interest rates. Operators who 
fail to pay finally-adjudicated penalties within 180 days face 
a withdrawal order until they pay their overdue fines or make 
timely payments on a payment plan.

                Title IV--Worker Rights and Protections


                 SEC. 401--PROTECTION FROM RETALIATION

    Problem: The culture of retaliation against workers who 
report safety hazards is pervasive in our most dangerous 
workplaces. This notion was made abundantly clear in the May 
24, 2010 field hearing on the Upper Big Branch mine tragedy in 
which miners and family members of those killed in the 
explosion testified that the miners expressed considerable 
reluctance about bringing safety and health concerns to the 
attention of mine operators or MSHA because they feared 
retaliation.\41\ Witnesses stated that there was a constant 
sense of intimidation and retribution if miners raised safety 
concerns or questioned whether corrections were going to be 
made. ``If you're going to be that scared of your job [at the 
mine] there, you need to rethink your career, because that's 
the way we do things,'' was a common theme. Eddie Cook, the 
uncle of Adam Morgan, a novice miner who died in the explosion 
at Upper Big Branch, recounted his nephew's stories about the 
practices that were going on at the mine, including ``[y]ou 
don't have the right to refuse [to do work we think is unsafe]. 
If you refuse, they tell you to get your bucket and go home . . 
. If you don't want to work here; we've got people out on the 
street wanting your jobs. And [your supervisor tells you] if 
you don't like the way we run it, you can go home.''\42\ When 
miners expressed safety concerns and requested transfers, 
management often denied these requests, and eventually they are 
fired. ``[M]anagement would look for ways to fire us. Maybe not 
that day or that week, but somewhere down the line, we'd 
disappear,'' said Stanley ``Goose'' Stewart, who worked at 
Upper Big Branch and was three hundred feet underground on his 
way to mine coal the day the explosion occurred.\43\
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    \41\The Upper Big Branch Mine Tragedy: Testimony of Family Members: 
Hearing before the H. Comm. on Education and Labor, 111th Cong. (2010), 
http://edlabor.house.gov/hearings/2010/05/the-upper-big-branch-mine-
trag.shtml.
    \42\Hearing, supra note 41 (testimony of Eddie Cook).
    \43\Hearing, supra note 41 (testimony of Stanley ``Goose'' 
Stewart).
---------------------------------------------------------------------------
    Alice Peters, the mother-in-law of Edward ``Dean'' Jones 
who was killed in the explosion, shared the story of miners who 
continued to work in the mine despite knowing it was unsafe. 
Her son-in-law particularly feared losing his health insurance 
benefits if he was fired because he had a son who suffers from 
cystic fibrosis and requires constant medical care. According 
to Mrs. Peters, ``[Massey] knew about his son and that Dean 
needed to keep his job to make sure his son could get the 
medical care he needed.''\44\ She went on to say that, ``On 
more than one occasion, I called the mine and told them there 
was an emergency regarding his son that he had to come home in 
order to get him out of the mine because I feared for his 
safety.''\45\
---------------------------------------------------------------------------
    \44\Hearing, supra note 41 (testimony of Alice Peters).
    \45\Hearing, supra note 41 (testimony of Alice Peters).
---------------------------------------------------------------------------
    Miners and relatives of those who died in the UBB explosion 
provided chilling evidence of how a corporate culture of 
producing coal over ensuring safety can lead to disaster.
    Solution: If the nation's mine safety and health program is 
to be truly effective, miners will have to play an active part 
in the enforcement of the Act. If miners are to be encouraged 
to be active in matters of safety and health, they must be 
protected against any possible discrimination which they might 
suffer as a result of their participation. The bill strengthens 
the anti-retaliation provisions of the Mine Act by prohibiting 
any person from discharging or taking adverse action against a 
miner, other employee, or applicant for employment because that 
person has (1) complained about any unsafe condition in a mine; 
(2) instituted any proceeding related to this Act, or testified 
or is about to testify in any such proceeding, or exercised any 
right provided by this Act; (3) testified or is about to 
testify to Congress or any federal or state proceeding related 
to safety or health in a mine, or has reported an injury or 
illness to an operator or agent; (4) refused to violate any 
provision of this Act (including a mandatory health and safety 
standard, a regulation, an order or a plan); or (5) such miner 
is the subject to a medical evaluation and potential transfer. 
In addition, a miner or other employee cannot be retaliated 
against for refusing to work if the employee has a ``good-faith 
and reasonable belief'' that performing his duties would pose a 
safety or health hazard to himself or any other miner or 
employer.\46\
---------------------------------------------------------------------------
    \46\The belief must be based on what a ``reasonable person'' would 
conclude confronted with the same circumstances. The miner or other 
employee, when practicable, is required to communicate or attempt to 
communicate the concern to the operator and have not received a 
response that allays the concern.
---------------------------------------------------------------------------
    This section also extends the statute of limitations for 
filing a complaint from 60 to 180 days. The legislation 
clarifies the existing law which requires that within 15 days 
of receipt of a complaint, the Secretary is required to begin 
an investigation and make a determination whether or not the 
complaint was frivolously brought. If the Secretary finds the 
complaint was not frivolously brought, she shall, on an 
expedited basis, apply to the Review Commission for an order of 
immediate reinstatement of the miner. The Secretary must 
complete the investigation, and if she finds retaliation, must 
immediately file a complaint with the Review Commission along 
with a proposed order for permanent relief. If the Secretary 
finds that a violation has not occurred, the miner (or 
applicant) has the option of filing a complaint with the Review 
Commission.
    Under this section, the Review Commission's existing 
authority to order ``make whole'' remedies is expanded to 
provide for exemplary damages.

                 SEC. 402--PROTECTION FROM LOSS OF PAY

    Problem: Under the current Mine Act, operators cited by 
MSHA for violations that require them to withdraw miners from 
the entire mine or certain sections of the mine (withdrawal 
orders issued under section under Sections 103, 104, 107, 108, 
or 110 of the Mine Act) are required to pay idled miners for 
the remainder of their shift after the withdrawal order is 
issued and for 4 hours of pay of their next scheduled shifts. 
However, if a mine is idled for longer than this period, miners 
are not paid. This provides a powerful disincentive for miners 
who want to report safety and health problems at their mines to 
MSHA from doing so because it can result in loss of pay for 
them and their coworkers. In addition, mine operators sometimes 
close mines in anticipation of receiving a withdrawal order 
from MSHA in order to prevent having to pay idled miners. Such 
actions by miner operators are not prohibited under current 
law, and miners idled as a result of such action have no 
recourse.
    Solution: H.R. 5663 retains the existing provision of 
Section 111 of the Mine Act providing balance of shift pay for 
the first shift, and not more than 4 hours of pay for the 
second shift following a MSHA withdrawal order. However, this 
legislation changes existing law to require operators to pay 
miners who are idled their full pay for up to 60 days, provided 
that the miners were idled due to an order issued under 
Sections 104, 107 (in connection with a citation), 108, or 110. 
Payments shall be made regardless of the result of any review 
of such order. This section also authorizes payments to miners 
who are idled for up to 60 days when the operator closes the 
mine in anticipation of an MSHA withdrawal order, except in 
those circumstances when the operator promptly withdraws miners 
due to a hazard and notifies MSHA, if required, within the 
prescribed time period. This is intended to ensure that mine 
operators who try to ``game the system'' by keeping miners 
exposed to a hazard until just before MSHA issues a withdrawal 
order will have to pay miners who are idled. However, if a mine 
operator promptly withdraws miners rather than continue to 
expose them to a hazard, notifies MSHA as required, and MSHA 
subsequently issues an order, the mine operator will not be 
liable for paying idled miners. The section also provides an 
expedited proceeding and decision before the Review Commission 
using the same time frames provided for the review of emergency 
response plans. If a miner or other employee is not paid, 
current law provides that he can file a complaint with the 
Review Commission, which can order payment. This legislation 
authorizes reasonable attorney fees and costs to be paid to a 
miner who prevails in whole or in part. Further, this section 
authorizes the Secretary to close a mine that fails to pay its 
miners pursuant to this section by the next regular payroll 
period.

 SEC. 403--UNDERGROUND COAL MINER EMPLOYMENT STANDARD FOR MINES PLACED 
                           IN PATTERN STATUS

    Problem: Currently, miners are employed under an 
``employment-at-will'' doctrine, which means that a mine 
operator can discharge a worker without providing any reason. 
Although HR 5663 provides stronger whistleblower protections 
for miners, even the strongest protections are not by 
themselves sufficient to ensure employees' freedom to speak out 
on health and safety concerns. Whistleblower laws, like other 
non-discrimination protections, require the employee or 
government to prove the employer's motive in an employment 
action. But proof of another's motive is no simple matter. 
Often, the only available evidence is circumstantial, and the 
``nexus'' (cause and effect connection) between an employee's 
complaint to MSHA and his subsequent discharge can be easily 
obscured by time and subterfuge.
    At the Committee's Beckley, West Virginia, field hearing on 
May 24, 2010, miners expressed skepticism that whistleblower 
provisions alone were enough to protect them. A whistleblower 
is not necessarily discharged immediately. Rather, he can be 
marked for later retaliation.\47\ Months may pass before the 
unscrupulous employer takes action and nexus is difficult, if 
not impossible, to establish. But action is taken, and the 
message to the targeted miner and his colleagues is 
unmistakable: do not raise safety concerns that could slow coal 
production, or identify violations that could place a mine on 
pattern status or extend the duration of pattern status. These 
concerns could take the form of identifying violations to MSHA 
inspectors, or reporting an accident or injury that could 
impact the mine's accident rates, both of which could lead to 
higher penalties for mines on pattern status, or the extension 
of time on pattern status.
---------------------------------------------------------------------------
    \47\Hearing, supra note 41.
---------------------------------------------------------------------------
    This skepticism is difficult to overcome. At best, the 
promise of a whistleblower statute is that of providing one's 
``day in court''--an opportunity to make one's case--however 
difficult, and relief in the form of complete reinstatement and 
back pay may not come for many months or years. In the 
meantime, the whistleblower is rewarded with unemployment and/
or significant uncertainty while the matter is being litigated.
    Since whistleblower protections constitute mere exceptions 
to a general employment-at-will doctrine, the law sends mixed 
signals to any would-be whistleblowers. On the one hand, they 
may not be fired for blowing the whistle. On the other hand, 
they may be fired for no reason whatsoever. The employment-at-
will doctrine is not consistent with a policy of encouraging 
employees to actively press for health and safety compliance, 
especially when an employer is focused singularly on production 
in a potentially ultra hazardous workplace.
    The most potentially deadly workplaces in the mining 
industry are underground coal and other underground gassy 
mines. Explosive dust or gas is prevalent in these mines. 
Possible ignition sources are plentiful. Casualties can be 
significant. Here, more than anywhere else, workers need 
additional rights not only to protect, but to encourage, 
whistleblowing.
    Solution: In the most dangerous mines, where whistleblowing 
and the right to raise safety concerns up the management chain 
without fear of retaliation is most critical to saving workers' 
lives, miners should be given the highest level of protection. 
In these workplaces, the employment-at-will doctrine should not 
apply. The burden of proof should not be placed on the 
discharged employee to prove the employer's internal motivation 
for the discharge or any constructive discharge. Rather, the 
burden should be shifted to the party which knows its own 
motivation. The employer should prove that it had just cause--a 
legitimate business reason--to discharge the employee. By 
providing this added protection, the law will help assure 
skeptical miners that they have some modicum of meaningful, 
enforceable employment rights months or even years after 
blowing the whistle.
    In the new safety regime for these most dangerous mines, 
H.R. 5663 would provide just-cause employment protection for 
miners when a mine enters pattern status and for 3 years 
thereafter. Mines in pattern status have proved themselves the 
most in need of watchdogs. Miners are the ``eyes and ears'' of 
safety enforcement, since MSHA cannot be in the mines at all 
times. To help MSHA evaluate whether a new culture of safety 
has truly taken at a mine in pattern status, miners should be 
given the necessary legal rights to freely blow the whistle and 
inform the enforcement agency of any ongoing problems. Since an 
employer's retaliation may lag behind the whistleblower's 
action to avoid the appearance of impropriety, the period of 
just-cause protection should be long enough to account for such 
lags.
    The bill's ``Employment Standard for Underground Coal 
Miners'' is modeled after a state law, the Montana Wrongful 
Discharge Act of 1987.\48\ For nearly quarter of a century, 
this state statute has provided workers in Montana with just 
cause protection. This law has had no impact on Montana's 
business climate. A 2008 study released by the American 
Constitution Society found that, since the law went into 
effect, Montana has seen no discernible impact on its 
employment rates.\49\ Jobs have grown there at rates similar to 
those in neighboring states which have retained employment-at-
will.
---------------------------------------------------------------------------
    \48\Mont. Code 39-2-904.
    \49\Barry D. Roseman, Just Cause in Montana: Did the Big Sky Fall? 
Issue Brief, American Constitution Society (September 2, 2008).
---------------------------------------------------------------------------

            Title V--Modernizing Health and Safety Standards


             SEC. 501--PRE-SHIFT REVIEW OF MINE CONDITIONS

    Problem: The Coal Mine Safety and Health Act of 1969 and 
the Mine Act of 1977 required pre-shift examinations of areas 
of mines where miners were expected to work or travel to be 
conducted within 3 hours of the beginning of each shift. 
Violations that were discovered were to be written in mine 
records and warning signs placed in the area of the violations. 
Under the 1969 law, this applied to any ``condition which 
constitutes a violation of a mandatory health or safety 
standard'' or ``any condition which is hazardous'' to workers. 
In 1992, the first Bush administration weakened MSHA 
regulations, requiring mine safety checks to look for 
violations only if they posed an immediate hazard to miners. In 
testimony before the Senate in April 2010, the Assistant 
Secretary of Labor for Mine Safety and Health stated he plans 
to issue a new rule reinstating this requirement in order to 
help prevent hazardous conditions that can threaten miners.\50\ 
The Committee, however, is concerned this important requirement 
remains subject to weakening, administration by administration, 
thus unnecessarily jeopardizing miners' health and safety.
---------------------------------------------------------------------------
    \50\Putting Safety First: Strengthening Enforcement and Creating a 
Culture of Compliance at Mines and Other Dangerous Workplaces before 
the S. Comm. on Health, Education, Labor and Pensions, 111th Cong. 
(2010), (testimony of Joseph A. Main).
---------------------------------------------------------------------------
    Solution: The bill codifies the requirement for underground 
coal mine operators to implement communication programs that 
ensure that, prior to beginning their work, miners are told 
about any violations, hazardous conditions and the general 
conditions of sections of the mine where miners are expected to 
work or travel.

                     SEC. 502--ROCK DUST STANDARDS

    Problem: Currently, underground mines are only required to 
meet a standard of 80% total incombustible content (the amount 
of rock dust that needs to be mixed with coal dust in order to 
prevent explosions) for the return entries of the mine. For 
intakes and neutral areas of the mine, mines must meet a 
standard of only 65%. The 65% standard was based on research 
conducted in the 1920s. With the advent of modern mining 
machinery, coal dust is much finer today and presents a greater 
explosive risk. NIOSH has conducted experiments on coal dust 
from every region of the country and recommended that the law 
be changed to require 80% total incombustible content.\51\ In 
addition, direct reading monitors that could assess total 
incombustible content levels of dust in underground mines and 
provide real time results may soon be commercially 
available.\52\ Currently, samples have to be sent to a lab and 
it can take 2 weeks to obtain the results.
---------------------------------------------------------------------------
    \51\Cashdollar, Sapko, et al., National Institute for Occupational 
Safety and Health, Recommendations for a New Rock Dusting Standard to 
Prevent Coal Dust Explosions in Intake Airways, Report of 
Investigations 9679 (May 2010)
    \52\Sapko (NIOSH) and Verakis (MSHA), Technical Development of the 
Coal Dust Explosibility Meter.
---------------------------------------------------------------------------
    Solution: H.R. 5663 increases the standard for the amount 
of rock dust that needs to be mixed with coal dust in all 
working areas of underground bituminous coal mines in order to 
prevent explosions from 65% to 80% in non-return entries. It 
also requires operators to take accurate samples of dust in 
active working areas of mines to ensure that dust is kept below 
explosive levels. And, once the Secretary of Health and Human 
Services (HHS) has certified that direct reading monitors are 
commercially available, and MSHA has approved them for use in 
underground coal mines, sampling will have to be done using 
direct reading monitors. The Secretaries of Labor and HHS must 
submit a report to the House and Senate labor committees within 
2 years on whether direct reading devices are sufficiently 
reliable and accurate to be used for enforcement of the rock 
dust standard. Furthermore, measurements taken by operators or 
MSHA using the direct reading devices cannot be used in 
enforcement actions under this Act, until after a finding has 
been made that such direct reading devices are sufficiently 
reliable and accurate to be used for enforcement, and a final 
rule is promulgated setting forth methods for its use.

                SEC. 503--ATMOSPHERIC MONITORING SYSTEMS

    Problem: Explosive-resistant and other redundant 
atmospheric monitoring systems inside mines would improve upon 
current technology in providing real-time data about 
atmospheric conditions to mine operators, and would provide a 
valuable tool for monitoring mine gases to prevent catastrophes 
like the explosion at Upper Big Branch. Atmospheric monitoring 
would also provide invaluable information about atmospheric 
conditions inside a mine to rescue personnel on the surface in 
a situation where time is of the essence and information is 
critical in making life-or-death decisions.
    Solution: A technical assessment must be conducted and 
recommendations issued by NIOSH's Office of Mine Safety and 
Health Research regarding (1) how to ensure that atmospheric 
monitoring systems (AMS) are utilized in the underground coal 
mining industry to maximize miners' health and safety; (2) the 
implementation of redundant systems, such as bundle tubing 
systems, that can continuously monitor the mine atmosphere 
following fires, explosions, entrapments, and inundations; and 
(3) the availability of other technologies to conduct 
continuous atmospheric monitoring. The technical assessment 
needs to be developed in consultation with operators, labor 
representatives, vendors, state mine safety agencies and other 
experts. Following receipt of these recommendations, the 
Secretary must promulgate regulations requiring underground 
coal mine operators to install AMS systems consistent with the 
NIOSH recommendations that protect miners; provide real-time 
information; and can, to the maximum extent practicable, 
withstand explosions and fires.

   SEC. 505--REFRESHER TRAINING ON MINER RIGHTS AND RESPONSIBILITIES

    Problem: In passing the Mine Act, Congress realized that 
miners play a crucial role in maintaining a safe and healthy 
workplace and enforcement of the Act. Because miners know the 
day-to-day work conditions of the mines as well as or better 
than anyone, and they are in a unique position to monitor 
workplace conditions when inspectors are absent. However, MSHA 
only requires statutory rights training for new miners. This 
obviously presents a problem because, even if new miners 
received the most dynamic statutory rights training, such 
knowledge fades over time. As noted in testimony by an attorney 
from the Appalachian Law Center before a Senate Committee in 
April 2010, a large number of miners do not have a thorough 
understanding of their numerous statutory rights and as a 
consequence they are unable to exercise such rights.\53\ Many 
miners do not know that they can, under the law, voice concerns 
about workplace health and safety, refuse to perform unsafe 
work, review and give input to many aspects of an operator's 
plans for mining, or speak with MSHA inspectors and 
investigators without retaliation. Many miners also do not 
realize that they may designate a representative to perform 
numerous functions under the Mine Act, and that such a 
representative need not necessarily be affiliated with a labor 
union. The method in which miners receive this training may 
also pose a problem. Operators and management personnel should 
not be permitted to provide any of the required training 
because they have a strong incentive to downplay the 
expansiveness and importance of these rights, the key role 
which Congress envisioned miners playing in regulation of the 
workplace, and the particulars of how miners can most 
effectively and fairly exercise such rights in the face of 
operator obstinacy and wrongdoing.
---------------------------------------------------------------------------
    \53\Hearing, supra note 50 (testimony of Wes Addington).
---------------------------------------------------------------------------
    Solution: Section 505, which amends Section 115(a)(3) of 
the Mine Act, adds an hour of miners' rights training to the 
yearly refresher training already required by the Mine Act. In 
addition, miners must receive this training only from MSHA or 
MSHA approved trainers who are independent of mine operators.

           SEC. 506--AUTHORITY TO MANDATE ADDITIONAL TRAINING

    Problem: Mine operators that have experienced accidents or 
have elevated rates of injuries, citations (particularly S&S;) 
or withdrawal orders may need to provide personnel with 
additional training to help improve safety performance. 
Similarly, after accident investigations, MSHA often issues 
alerts to the industry regarding compliance and best practices 
to prevent similar accidents. This may require added training.
    Solution: Authorize MSHA to issue an order requiring that 
an operator provide additional training if the Secretary finds 
that additional training would benefit the health and safety of 
miners at the mine where the mine has experienced accident and 
injury rates, citations for violations of the Act, citations 
for significant and substantial violations, or withdrawal 
orders at a rate above the average for mines of similar size 
and type. H.R. 5663 does this.

                  SEC. 507--CERTIFICATION OF PERSONNEL

    Problem: The Mine Act does not require MSHA to certify most 
miners or ensure that states certify mine personnel, other than 
miners who perform certain tasks specified in the Mine Act, 
such as miners who perform electrical work, and miners who 
operate or maintain hoisting and diesel powered equipment. 
Although most states have certification requirements, they vary 
substantially. Some states do not require personnel to, once 
they are certified, update their certifications. The positions 
certified by the states and the reciprocity provisions that 
allow miners certified in one state to work in another state 
also differ substantially. Several states do not have a process 
for revoking miners' certifications once they have been issued. 
As a result, the safety and health of miners may be jeopardized 
by working with personnel who have not been properly trained. 
Finally, there is no central data base of individuals whose 
certifications have been revoked. This could allow state that 
does not have reciprocity to unwittingly provide a 
certification to individual who had his certification revoked 
for improper conduct.
    Solution: The bill requires MSHA to establish minimum 
requirements for the certification of miners, including 
periodic recertification and a process for revoking miners' 
certifications, and ensure that all state certification 
programs meet these minimum requirements. If a state does not 
meet the minimum standards or cover certain mine 
classifications (e.g., mine superintendants), MSHA's 
certification processes will apply in that state. In 
establishing standards, the Secretary must consult with the 
states that have miner certification programs to assure 
effective coordination with existing state standards and 
requirements for certification. Further, the standards shall 
provide that a state's program of certification satisfies the 
standard set forth by the Secretary if it is no less stringent 
than that set forth under MSHA's standards. The Secretary is 
also authorized to assess and collect a fee from operators to 
cover the costs of testing and certifying miners and is 
required MSHA to establish a database of miners whose 
certification has been revoked, either by MSHA or a state. This 
section requires MSHA to set up a data base of individuals 
whose certifications have been revoked and to provide state 
certification agencies with access to that information. Section 
104 (c) of this legislation (Injury and Illness Reporting) 
establishes that knowing falsification of accident, illness and 
injury reports to MSHA is grounds for revocation of a 
certification.

              Title VI--Additional Mine Safety Provisions


                         SEC. 601--DEFINITIONS

    Problem: Currently, entities that do not directly operate 
the mine but control managerial decisions for the mine may not 
be subject to the civil and criminal enforcement provisions of 
the Mine Act.
    Solution: H.R. 5663 expands the definition of the term 
``operator'' to include those who directly or indirectly 
``control'' management decisions which impact health and safety 
at a mine.

                     SEC. 602--ASSISTANCE TO STATES

    Problem: Authorized funding levels for funding to state 
mine safety agencies by MSHA has remained static at $10 million 
per year since 1971. States will need assistance in upgrading 
their mine certification programs.
    Solution: Increase authorization for funding to $20 million 
per year, and authorize MSHA to provide grants to states to 
improve their certification programs to comply with the new 
certification requirements.

                  SEC. 603--BLACK LUNG MEDICAL REPORTS

    Problem: When a coal operator requires a miner who has 
filed a claim for black lung benefits to submit to a medical 
exam, there is no requirement for the operator to provide the 
doctor's medical reports to the claimant, unless the claimant 
specifically requests those documents. Regulations governing 
the black lung program state, at 29 CFR 18.19(c)(4), that ``A 
report of examining physician shall be made in accordance with 
Rule 35(b) of the Federal Rules of Civil Procedure.'' Rule 
35(b) goes on to say that ``The party who moved for the 
examination must, on request, deliver to the requester a copy 
of the examiner's report. . .'' However, the Committee is aware 
of cases where pro se claimants did not know of their right to 
request a copy of their medical examination records. In these 
cases, the claimants only received partial information, which 
excluded relevant medical findings that supported the merits of 
their claims and misled the claimants. Thus, it is imperative 
that claimants receive full and complete medical reports 
without having to request them or make a discovery request.
    Solution: If a miner is required to submit to a medical 
exam, he should receive a complete copy of the results of that 
exam in a timely manner without having to ask for one or make a 
discovery request. H.R. 5633 adds this requirement to the Mine 
Act.

    Title VII--Amendments to the Occupational Safety and Health Act


Introduction

    In 1970, Congress enacted the Occupational Safety and 
Health Act (OSH Act) and declared its purpose ``to assure so 
far as possible every working man and woman in the Nation safe 
and healthful working conditions.''\54\ For the last 40 years, 
this legislative milestone has helped saved the lives of more 
than 410,000 workers, and the number of yearly workplace 
fatalities has dropped from 13,800 in 1970 to 5,214 in 
2008.\55\ However, with an average of 14 workers a day being 
killed in workplace accidents, workers are still at risk.\56\ 
These numbers do not include the 50,000 to 60,000 deaths that 
occur from occupational diseases each year.\57\
---------------------------------------------------------------------------
    \54\29 U.S.C. 651(b).
    \55\AFL-CIO, Death on the Job: The Toll of Neglect, 6, 34 (19th ed. 
2010). These fatality statistics are based on data from the National 
Safety Council Accident Facts (1971-1991) and from the Bureau of Labor 
Statistics, Census of Fatal Occupational Injuries (1992-2008).
    \56\Id. at 6.
    \57\Id.
---------------------------------------------------------------------------
    This continuing risk to workers is underscored by a string 
of multi-facility workplace accidents in the first months of 
2010 that killed 52 workers. In February, 6 workers were killed 
at the Kleen Energy Plant in Middletown, Connecticut in a 
natural gas explosion. On April 2, a blast at the Tesoro Oil 
Refinery in Anacortes, Washington caused the deaths of 7 
workers who were engulfed in a ``firewall.'' On April 5, 29 
miners were killed in a massive explosion at the Upper Big 
Branch mine in Montcoal, Virginia, and on April 20, 11 workers 
were lost following an explosion on the Transocean Deepwater 
Horizon Drilling rig leased by BP in the Gulf of Mexico.
    Workplace injury and illness rates among private sector 
employees have also declined from 10.9 per 100 workers in 1972 
to 3.9 per 100 workers in 2008.\58\ However, a minimum of 4.6 
million workers (3.7 million private sector and 938,000 state 
and local government workers) a year, or about 13,000 a day, 
are injured or become ill on the job.\59\ Sadly, these are only 
the reported cases, and according to several studies performed 
in recent years, actual injuries and illnesses are far 
greater.\60\ One such study published in 2004 found that that 
the occupational injury and illness statistics published by the 
U.S. Bureau of Labor Statistics (BLS) are underestimated by as 
much as 69%.\61\ In addition, the AFL-CIO in its annual Death 
on the Job: The Toll of Neglect report estimates that in 2008, 
there were actually 11.1 million workplace injuries and 
illnesses in private industries.\62\
---------------------------------------------------------------------------
    \58\Id. at 47.
    \59\Id. at 8.
    \60\Id. at 10-11.
    \61\J. Paul Leigh et al., An Estimate of the U.S. Government's 
Undercount of Nonfatal Occupational Injuries, 46 J.Ocupational & Envtl. 
Med. 10 (January 2004).
    \62\AFL-CIO, supra note 55 at 59.
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    In the 111th Congress, Congress has paid particular 
attention to the underreporting of illnesses and injuries, and 
in June 2008, this Committee held an oversight hearing to 
explore the causes and impact of underreporting.\63\ One of the 
witnesses--Dr. John Ruser, the Assistant Commissioner for 
Safety, Health and Working Conditions at the Bureau of Labor 
Statistics--acknowledged that the employer survey BLS uses to 
determine annual illnesses and injuries has limitations and 
does not capture the full extent of illnesses and injuries.\64\ 
The survey does not count long latent occupational illnesses 
like cancer; workers outside of the survey scope, including the 
self-employed, workers in small farms and households; and 
illnesses and injuries that are not reported.\65\
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    \63\Hidden Tragedy: Underreporting of Workplace Injuries and 
Illnesses: Hearing Before the H. Comm. on Education and Labor, 110th 
Cong. (2008), http://edlabor.house.gov/hearings/full-committee. The 
Senate Labor, HHS Appropriations Subcommittee also reviewed this issue 
and included funding for this issue in its FY09 bill.
    \64\Hearing, supra note 63 (testimony of John Ruser).
    \65\Id.
---------------------------------------------------------------------------
    In conjunction with the hearing, the Committee released a 
report entitled Hidden Tragedy: The Underreporting of Illnesses 
and Injuries\66\ outlining the enormity of the problem. In 
addition, in October 2009, the Government Accountability Office 
(GAO) released a report substantiating that underreporting of 
illnesses and injuries exists and outlining the disincentives 
to reporting.\67\ It found that employees may not report an 
injury or illness because they fear losing their jobs or 
jeopardizing rewards based on having low injury and illness 
rates. On the employer side, there is underreporting to avoid 
workers' compensation costs or in order to win contract bids. 
Through a survey of occupational health professionals, 
including physicians, GAO discovered that many workers were 
under significant pressure not to report illnesses and 
injuries. More than one-third of the health professionals 
surveyed had been asked by employers or workers not to provide 
necessary medical treatment so their injuries would not be 
reported.\68\
---------------------------------------------------------------------------
    \66\Staff of H. Comm. on Education and Labor, Report on 
Underreporting of Workplace Injuries and Illnesses, 110th Congress, 
(June 2008). http://edlabor.house.gov/publications/
20080619WorkplaceInjuriesReport.pdf.
    \67\GAO, Workplace Safety and Health: Enhancing OSHA's Records 
Audit Process Could Improve the Accuracy of Worker Injury and Illness 
Data GAO-10-10, (2009). http://www.gao.gov/new.items/d1010.pdf.
    \68\Id.
---------------------------------------------------------------------------
    Experts say that the overwhelming majority of these 
fatalities and on-the-job injuries and illnesses, which are 
tragedies for workers and to their families, are preventable. 
They also impose enormous financial burdens on employers. In 
2007, employers paid over $85 billion in direct workers' 
compensation costs.\69\ However, these direct costs would have 
been even higher if all of these workers with injuries 
requiring medical care or lost work time actually sought these 
benefits.\70\
---------------------------------------------------------------------------
    \69\National Academy of Social Insurance, Workers' Compensation: 
Benefits, Coverage and Costs, 2007, 2, 27 (2010).
    \70\Id. at 31-33. Studies have found that only 52 to 60% of injured 
and ill workers receive workers' compensation benefits.
---------------------------------------------------------------------------
    Data from Liberty Mutual's Workplace Safety Index indicate 
that employers pay between $156 and $312 billion in both direct 
and indirect costs when workers are injured. Direct costs 
include medical and loss wage payments; indirect costs include 
overtime, training and loss of productivity. These numbers are 
understated as well because they are based on BLS data (which 
relies on reported injuries) and include only the most serious 
injuries.\71\
---------------------------------------------------------------------------
    \71\AFL-CIO, supra note 55, at 13. In addition, for 2008, the 
National Safety Council reported that the economic cost of deaths and 
disabling injuries was $183 billion. National Safety Council, Summary 
from Injury Facts (2010 ed.), http://www.nsc.org/news_resources/
injury_and_death_statistics/Pages/InjuryDeathStatistics.aspx.
---------------------------------------------------------------------------
    OSHA is responsible for protecting the safety and health of 
over 100 million workers at 7.5 million private sector 
workplaces and 200,000 construction sites. The agency also 
covers 2.8 million Federal employees.\72\ Nationally, there are 
approximately 2,200 Federal and State inspectors,\73\ one for 
every 60,000 workers.\74\
---------------------------------------------------------------------------
    \72\U.S. Department of Labor, FY 2011 Budget in Brief 58, http://
www.dol.gov/dol/budget/2011/PDF/bib.pdf
    \73\In FY 2009, there were 1,300 state inspectors and 885 federal 
inspectors. See AFL-CIO, supra note 2, at 13.
    \74\Hearing, supra note 2 (testimony of David Michaels).
---------------------------------------------------------------------------
    With a $559 million budget in FY 2010, (a $46 million 
increase compared with FY 2009), OSHA expects to inspect 41,700 
worksites in 2010. With this level of resources, federal OSHA 
only has the capacity to inspect each American workplace in its 
jurisdiction once every 137 years.\75\
---------------------------------------------------------------------------
    \75\AFL-CIO, supra note 55, at 13.
---------------------------------------------------------------------------
    According to the AFL-CIO, in 7 states, (Arkansas, Delaware, 
Florida, Georgia, Louisiana, South Dakota and Texas), it would 
take 150 or more years for federal OSHA to inspect each 
worksite. And in 18 states, it would take between 100 and 149 
years to inspect each site.\76\
---------------------------------------------------------------------------
    \76\Id.
---------------------------------------------------------------------------
    Inspections are more frequent in the 27 states that have 
their own state plans, but are still insufficient.\77\ State 
inspectors are expected to inspect 63,800, an increase of 
2,800.
---------------------------------------------------------------------------
    \77\Id.
---------------------------------------------------------------------------
    Due to the large number of workplace it covers and 
constraints on the number of inspectors, OSHA is limited in its 
ability to significantly reduce fatalities, injuries and 
illnesses. Updated legal tools are necessary to deal with the 
safety and health problems confronting American workers.

            SEC. 701--ENHANCED PROTECTIONS FROM RETALIATION

    Problem: Since OSHA's ability to reach every workplace is 
severely restricted, it is critical that workers be its ``eyes 
and ears'' by reporting unsafe conditions, illnesses and 
injuries and other violations of the OSH Act to their employers 
and OSHA. However, providing healthy and safe workplaces 
depends on the willingness of workers to come forward, and if 
they are afraid they will lose their jobs, they are much less 
likely to do so.\78\
---------------------------------------------------------------------------
    \78\Hearing, supra, note 2 (testimony of Lynn Rhinehart).
---------------------------------------------------------------------------
    When the OSH Act was originally passed in 1970, Congress 
recognized that workers must be protected from retaliation and 
created section 660(c) (commonly known as 11(c)) for that 
purpose. It provides:

          No person shall discharge or in any manner 
        discriminate against any employee because such employee 
        has filed any complaint or instituted or caused to be 
        instituted any proceeding under or related to this 
        chapter or has testified or is about to testify in any 
        such proceeding, or because of the exercise by such 
        employee on behalf of himself or others of any right 
        afforded by this chapter.

    Protected activity includes filing a complaint with OSHA or 
another agency relating to workplace safety and health; raising 
workplace safety or health concerns to an employer; 
participating in an OSHA inspection; filing a notice of contest 
with respect to abatement of safety or health hazards; 
participating in a judicial proceeding challenging a safety and 
health standard; and, in some cases, refusing to work in a 
unsafe and unhealthy workplace.\79\
---------------------------------------------------------------------------
    \79\Occupational Safety and Health Law 590-95 (Randy Rabinowitz 
ed., 2nd ed., 2002). With regard to the refusal to work, see also 29 
C.F.R. 1977.12(b)(2), which provides that: ``If the employee, with no 
reasonable alternative, refuses in good faith to expose himself to the 
dangerous condition, he would be protected against subsequent 
discrimination. The condition causing the employee's apprehension of 
death or injury must be of such a nature that a reasonable person, 
under the circumstances then confronting the employee, would conclude 
that there is a real danger of death or serious injury and that there 
is insufficient time, due to the urgency of the situation, to eliminate 
the danger through resort to regular statutory enforcement channels. In 
addition, in such circumstances, the employee, where possible, must 
also have sought from his employer, and been unable to obtain, a 
correction of the dangerous condition.''
---------------------------------------------------------------------------
    Protections under 11(c) apply to all forms of retaliation, 
including reprimands, suspension, pay changes, discharges, or 
refusals to hire.\80\ While successful complainants are 
entitled to ``all appropriate relief,'' including 
reinstatement, back pay, and exemplary or punitive damages--
sometimes interpreted to include double back pay--\81\ the OSH 
Act does not provide for preliminary relief, including 
preliminary reinstatement, pending the final disposition of a 
case.
---------------------------------------------------------------------------
    \80\Id. at 591-592.
    \81\Id. at 600-601. Also see: Reich v Cambridgeport Air Systems, 26 
F.3d 1187 (1st Cir.1994), which found that the OSHA Act's provision for 
``all appropriate relief'' allows for the award of exemplary damages.
---------------------------------------------------------------------------
    The Section 11 (c) program is administered by OSHA's 
Whistleblower Protection Program (WPP), which also has the 
responsibility for investigating complaints under 17 other 
federal whistleblower statutes.\82\ Section 11(c) whistleblower 
cases account for a majority of the complaints filed under the 
WPP program, and in 2009, 1,280, or 59%, out of the 2,161 cases 
filed were 11(c) cases.
---------------------------------------------------------------------------
    \82\These statutes include: Surface Transportation Assistance Act, 
49 U.S.C. 31105; Asbestos Hazard Emergency Response Act, 15 U.S.C. 
2651; International Safe Container Act, 46 App. U.S.C. 1506; Safe 
Drinking Water Act, 42 U.S.C. 300(j)-9(i); Federal Water Pollution 
Control Act, 33 U.S.C. 1367; Toxic Substances Control Act, 15 U.S.C. 
2622; Solid Waste Disposal Act, 42 U.S.C. 6971; Clean Air Act, 42 
U.S.C. 7622; Comprehensive Environmental Response, Compensation and 
Liability Act (CERCLA), 42 U.S.C. 9610; Energy Reorganization Act, 42 
U.S.C. 5851; Wendell Ford Aviation Investment and Reform Act (AIR21), 
49 U.S.C. 42121; Corporate Criminal and Fraud Accountability Act (SOX), 
18 U.S.C. 1514a; Pipeline Safety Improvement Act, 42 U.S.C. 60129; 
Federal Rail Safety Act, 49 U.S.C. 20109; National Transit Systems 
Security Act, 6 U.S.C.1142; Consumer Product Safety Improvement Act, 15 
U.S.C. 2087; and Patient Protection and Affordable Care Act, PL 111-
148.
---------------------------------------------------------------------------
    Section 11(c) dates back to the original enactment of the 
OSH Act in 1970 and is the oldest of the whistleblower statutes 
administered by WPP. It lacks the protections afforded to 
whistleblowers under modern whistleblower laws enacted since 
1970.\83\ In addition, 11(c) imposes numerous hurdles that 
result in meritorious claims being unfairly dismissed. For 
example, unlike such laws as the Federal Railroad Safety Act 
and the Consumer Product Safety Improvement Act, where 
complainants have up to 180 days, 11(c) complainants have just 
30 days from the day of the discrimination to file a complaint. 
Deputy Assistant Secretary for OSHA Jordan Barab, testifying 
before the Subcommittee on Workforce Protections on April 28, 
2010, described a textile worker who was fired for reporting to 
his employer that he had become ill from smoke exposure during 
the production process. OSHA dismissed his case because he 
filed his claim 62 days after being terminated.\84\ Many 
workers do not learn that the protected activity motivated the 
personnel action until much later than the 30 day filing 
period. Further, they often do not learn of their legal rights 
until after the filing deadline has expired.
---------------------------------------------------------------------------
    \83\Whistleblower and Victim's Rights Provisions of H.R. 2067, the 
Protecting America's Workers Act: Hearing before the Subcomm. on 
Workforce Protections of the H. Comm. on Education and Labor, 111th 
Cong. (2010) (testimony of Jordan Barab). He testified: ``Section 11(c) 
was innovative and forward looking in 1970, but 40 years later it is 
clearly antiquated and in dire need of substantial improvement. . . . 
There is no reason that workers speaking up about threats to their 
safety and health should enjoy less protection than workers speaking up 
about securities fraud or transportation hazards.'' See also, GAO, 
Workplace Safety and Health: Enhancing OSHA's Records Audit Process 
Could Improve the Accuracy of Worker Injury and Illness Data, supra 
note 67.
    \84\Hearing, supra note 83 (testimony of Jordan Barab).
---------------------------------------------------------------------------
    Moreover, unlike many other whistleblower statutes, 
claimants under 11(c) have a minimal review process and lack 
any right to a hearing before an impartial body. Within 90 days 
after a complaint is filed, the Secretary of Labor is obliged 
to ``notify the complainant of his determination.'' According 
to OSHA's Whistleblower Investigations Manual,\85\ an OSHA 
regional office is responsible for conducting the 
investigation.\86\ Each OSHA Regional Administrator (RA) has 
the authority to make determinations and approve settlement 
agreements.\87\ While 11(c) provides that this determination 
must be made within 90 days, OSHA usually takes longer, and in 
2009, averaged 151 days.\88\ If an RA finds that a case has 
``merit'' and cannot settle it between the parties, it refers 
it to the Solicitor of Labor (SOL). In 2009, RAs referred 2% or 
24 cases to SOL.\89\
---------------------------------------------------------------------------
    \85\Occupational Safety and Health Agency, Whistleblower 
Investigations Manual, Directive No. DIS0-0.9 (August 22, 2003), http:/
/www.osha.gov/OshDoc/Directive_pdf/DIS_0-0_9.pdf.
    \86\Section 11(c) is not ceded to states under Section 18 of the 
OSH Act. Complaints filed in states in which federal OSHA enforces the 
OSH Act are investigated by federal OSHA; those filed in state-plan 
states are investigated by the state. Even though federal OSHA has 
concurrent jurisdiction with state plans, the policy in federal OSHA 
when it receives an 11(c) complaint involving an employer in a state 
plan state, is to refer such complaint back to the state.
    \87\If the RA finds that a case has ``merit,'' it is referred to 
the Department of Labor's Office of the Solicitor (SOL). If the RA 
finds that the case has no merit, the only recourse the complainant has 
is to appeal the matter to OSHA headquarters for an informal review. 
Attorneys from the SOL and OSHA then review the case and decide whether 
to return it to the RA for additional investigation, recommend that the 
RA refer the case for litigation, or deny the appeal. Such decisions, 
including a decision to deny an appeal, are final and cannot be 
reviewed by a court.
    \88\In addition, a January 2009 report by the U.S. Government 
Accountability Office found that OSHA's program lacks internal 
controls, including conducting independent audits of the program to 
ensure that the various Regional Administrators consistently apply its 
policies and procedures. See GAO, Workplace Safety and Health: 
Enhancing OSHA's Records Audit Process Could Improve the Accuracy of 
Worker Injury and Illness Data, supra note 67.
    \89\In 2009, federal OSHA dismissed 60% (729) of 1,205 cases it 
completed that year. Sixteen percent (188 cases) were withdrawn, 22% 
(264 cases) were settled, and 2% (24 cases ) were found to have merit. 
Of the 999 cases complete by state-plan states that same year, 66% (662 
cases) were dismissed, 15% (15 cases) were withdrawn, 14% (136 cases) 
were settled, and 5% (50) were found to have merit.
---------------------------------------------------------------------------
    Even fewer cases referred to the SOL are actually 
litigated. Between October 1, 1995, and October 1, 2009, less 
than 7% of the referred merit cases were filed in court. The 
specific reasons for this vary from case to case, but given the 
demands on the SOL, it is clear that it is interested in taking 
only those cases that have a high likelihood of success. In 
addition, because the prosecutor bears a high a burden of proof 
in 11(c) cases,\90\ the SOL is reluctant to litigate them.
---------------------------------------------------------------------------
    \90\In 11(c) cases, the prosecutor must establish by a 
preponderance of the evidence that: (1) the complainant engaged in a 
protected activity; (2) the employer had knowledge of the protected 
activity at the time the discriminatory action took place; and (3) the 
discriminatory activity was taken because of the employee's protected 
activity. Oftentimes, the employer will offer a non-discriminatory 
reason for its adverse action. To prove that articulated reason is not 
the real reason for the action, the burden shifts back to the 
prosecutor to show that the reason given is merely a pretext. See 
Rabinowitz, supra at note 59, citing Reich v. Hoy Shoe Co., 32 F.3d 361 
(8th Cir. 1994).
---------------------------------------------------------------------------
    The SOL has sole discretion whether or not to litigate a 
case, and it cannot be compelled by a court to prosecute a 
merit case.\91\ Under the OSH Act, workers with meritorious 
claims have no right to file their own private actions in court 
or to seek review of the SOL's decision not to pursue a case in 
court.
---------------------------------------------------------------------------
    \91\See Roger Wood v. Department of Labor and Elaine Chao, 275 F.3d 
107 (D.C. Cir. 2001).
---------------------------------------------------------------------------
    The case of Neal Jorgensen, an 11(c) whistleblower, who 
testified before the Workforce Protections Subcommittee on 
April 28, 2010, illustrates the extreme limitations of 11(c). 
Mr. Jorgensen worked as a laborer for Plastic Industries in 
Preston, Idaho from October 7, 2003 to April 27, 2004. His 
employer is engaged in plastic fabrication, extrusion and 
recycling, and Mr. Jorgensen worked in the plastic recycling 
unit, where he cleaned plastic and baled plastic and cardboard 
for recycling. During his employ, Mr. Jorgensen became 
concerned about safety at the plant. He worked with balers that 
were not up to code and band saws without machine guards.
    On April 19, 2004, Mr. Jorgensen filed a complaint with 
OSHA's Boise Area office. The next day OSHA conducted an on-
site visit and cited the company for two serious violations (a 
bandsaw had no machine guard and a baler's safety feature had 
been overridden) and five other than serious violations. OSHA 
initially assessed a fine against the company of $2,550, which 
was later reduced to $1,500. Seven days later on April 27, 
2004, the company terminated Mr. Jorgensen alleging that he was 
a poor performer.
    Mr. Jorgensen filed an 11(c) complaint within the 30 day 
statute of limitations. The case was investigated, and the 
investigator determined that the employer's stated reason for 
firing him was a pretext, and that he was actually fired for 
filing the complaint with OSHA. The employer refused to settle, 
and on December 4, 2004, the investigator referred the case to 
SOL for prosecution. In a memorandum dated March 18, 2005, the 
SOL declined the case stating:

          Given the facts of this case, we believe we have an 
        approximate 25% chance of success. There are two U.S. 
        District Court judges in Idaho, one of whom is 
        routinely well disposed towards the government's cases, 
        and the other who can go either way. These 
        circumstances compel us to recommend that this matter 
        not go forward with litigation.

    Under 11(c) Mr. Jorgensen had no ability to seek judicial 
review of the Solicitor's decision and was left without 
recourse to pursue the case on his own. He had found a new job 
but was unable to recover his lost wages of nearly $3,000. As 
he testified to the Subcommittee:

          I thought I did the right thing, but the system did 
        not work for me. The OSHA law did not provide the 
        protections I needed and the only lesson the owner of 
        the company learned is that he can treat his employees 
        any way he likes, and then lie about it, and nothing 
        will happen to him. Nothing. Would I recommend that 
        someone file a whistleblower complaint with OSHA? 
        Absolutely not, the way the law is written.\92\
---------------------------------------------------------------------------
    \92\Hearing, supra note 83 (testimony of Neal Jorgensen).

    OSHA Deputy Assistant Secretary Jordan Barab testified 
before the Committee that Mr. Jorgensen's case of the 
Department opting not to pursue a meritorious claim ``is not an 
isolated case. There are many, many cases of those.''\93\ 
According to Mr. Barab: ``We're operating in a dysfunctional 
system. It just doesn't work.''
---------------------------------------------------------------------------
    \93\Id. (testimony of Jordan Barab).
---------------------------------------------------------------------------
    As these cases point out, section 11(c)'s whistleblower 
provisions, where workers have no ultimate private right of 
action, are inadequate to protect workers from retaliation, and 
they provide workers with little confidence to come forward to 
file complaints about health and safety. There is near 
universal agreement among workplace safety and health experts 
that 11(c) is seriously deficient.\94\
---------------------------------------------------------------------------
    \94\Hearing, supra note 83 (testimony of Lynn Rhinehart).
---------------------------------------------------------------------------
    Some state courts have found that Section 11(c)'s 
protections are inadequate. For example, in Flenker v. 
Willamette Industries,\95\ the Kansas Supreme Court found that 
Section 11(c) did not preclude a complainant from pursuing a 
state claim for common law discharge under Kansas' public 
policy exception to the at-will employee doctrine. The court 
stated:
---------------------------------------------------------------------------
    \95\967 P. 2d 295 (1998).
---------------------------------------------------------------------------
          Section 11(c) does not provide an adequate remedy for 
        the following reasons: (1) remedy under this section is 
        only applicable if the Secretary [of Labor] so elects; 
        (2) pursuit of such remedy must be made within 30 days; 
        and (3) this section does not allow for pursuit of a 
        private claim if the Secretary declines to proceed 
        (unlike other federal whistleblower laws such as the 
        Energy Reorganization Act).\96\
---------------------------------------------------------------------------
    \96\See Kulch v. Structural Fibers, Inc., 667 N.E. 2d 308 (1997), 
where in a dissent in a case before the Ohio Supreme Court Justice Cook 
made it clear in dictum that 11(c) provided an insufficient remedy for 
a whistleblower, and Shawcross v. Pyro Products Inc., 916 S.W. 342 
(1995), where a court found that the 11(c) provision of OSHA did not 
provide an adequate remedy.

    Section 11(c) currently does not provide for preliminary 
reinstatement, and employees, who may wait years for OSHA to 
determine whether their case has merit, can suffer severe 
financial hardship. Public policy to encourage workers to raise 
safety and health concerns to their employers or the 
government, should not require these workers to have to bear 
the burden of illegal employer conduct when their retaliation 
claim is deemed by the Labor Department to have merit. In 
contrast to the OSH Act, the Mine Act authorizes the Review 
Commission to order temporary reinstatement where a miner's 
claim has been found not to be frivolous.David Michaels, the 
Assistant Secretary for OSHA, was asked by Representative Kildee at the 
Committee's legislative hearing on July 13, 2010, on H.R. 5663 what 
elements in the legislation would help OSHA leverage its limited 
resources. Along with penalties, Dr. Michaels cited the whistleblower 
protections in the bill as very important:

          Workers are the eyes and ears of OSHA. They have more 
        on the line in terms of safety than any of us. They are 
        the ones whose arms and lungs are in danger, so they 
        have to feel free to raise issues of safety. And if 
        they don't have adequate whistleblower protection, and 
        frankly, under the current OSHA [they don't], then they 
        can't raise problems without the fear of losing their 
        jobs, and they can't call OSHA without fear of losing 
        their jobs. So that alone will have a great impact.\97\

    \97\Hearing, supra note 2 (testimony of David Michaels).
---------------------------------------------------------------------------
    Solution: Section 701 expands the scope of statutorily 
protected activities by covering an employee's refusal to work 
when he reasonably believes that performing such duties would 
result in a serious injury to or impairment of health to 
himself or other employees. The scope of protected activity 
also covers reporting of illnesses, injuries or unsafe 
conditions to employers, and 701 provides for this, essentially 
codifying regulations promulgated by OSHA.\98\ Section 701 
provides that an employee who testifies before Congress in a 
matter related to safety and health, or who refuses to violate 
any provision of the OSHA Act, is protected from discrimination 
or retaliation under Section 11(c).
---------------------------------------------------------------------------
    \98\29 C.F.R. 1977.9(c).
---------------------------------------------------------------------------
    Section 701 extends the statute of limitations for filing a 
complaint of discrimination from 30 days to 180 days--the same 
statute of limitations applicable to other modern whistleblower 
laws such as the Consumer Product Safety Improvement Act.
    Section 701 requires the Secretary of Labor to investigate 
all 11(c) cases if it finds that the complaint alleges a prima 
facie case. It gives the Secretary the authority to issue 
subpoenas in connection with the investigation, and it places 
time limits on the Secretary's investigation of charges of 
discrimination by requiring that her initial determination 
about whether there is reasonable cause to believe that a 
violation has occurred be made within 90 days after the filing 
of a complaint. If the Secretary issues a decision in favor of 
the complainant, she must issue an order, which includes 
preliminary reinstatement or other appropriate relief, 
including compensatory damages, attorney's fees, and as 
appropriate, exemplary damages.
    Section 701 sets out an administrative procedure with the 
opportunity for a hearing on the record, and review by a review 
board. Within 30 days of the Secretary's determination to grant 
or deny relief, or to dismiss a case without investigation (or 
within 120 days if the Secretary fails to issue a decision), a 
complainant may request a de novo hearing on the record before 
an administrative law judge (ALJ). The ALJ, who is empowered to 
issue subpoenas in order to conduct a hearing, must issue its 
decision (along with an order and any appropriate relief) 
within 90 days. A complainant or a respondent then has 30 days 
from the ALJ's decision to file an appeal with an 
administrative review board designated by the Secretary to 
review the case to determine if the ALJ's factual findings are 
supported by substantial evidence and whether its order was 
made in accordance with the law. This decision is required to 
be issued within 90 days after the review board's receipt of 
the appeal and may be reviewed by the Court of Appeals. If 
either the ALJ or review board fails to make its determination 
in a timely manner, then the complainant has the right to file 
for a de novo proceeding on his case in federal district court. 
Section 701 permits an employee, whose employer is located in a 
state-plan state, to file a complaint--at his option--with 
either the Secretary or a state plan administrator; however, 
the Secretary may not refer a complaint filed with federal OSHA 
back to the state plan state.
    The whistleblower provisions in Section 701 of H.R. 5663 do 
not break new ground but merely mirror modern whistleblower 
statutes, such as the Consumer Product Safety Improvement Act 
of 2008 and the recently passed Patient Protection and 
Affordable Care Act. Section 701 establishes a meaningful 
administrative procedure for review of cases, including a right 
to a hearing before an administrative law judge, appeal to an 
administrative review board, and judicial review. In addition, 
the bill contains mandatory deadlines within which DOL, 
administrative law judges, and the appeals board must act with 
regards to complaints and appeals.
    Settlement agreements reached between the parties in the 
administrative review process cases must comport with the 
letter and spirit of the OSH Act and in conformity with good 
public policy. As a result, section 701 provides that no 
settlement can be accepted by the Secretary, ALJ, or review 
board if it conflicts with the rights protected under the OSH 
Act or is contrary to public policy. This includes any 
restrictions on the complainant's right to future employment 
with another employer or on their rights to free speech with 
regard to matters pertaining to their employment, such as the 
right to testify in any proceeding involving the employer.
    A complainant alleging discrimination has the burden of 
proving that protected activity was a ``contributing factor'' 
to the adverse action. The employer can overcome this by 
demonstrating by clear and convincing evidence that the 
employer would have taken the same adverse action in the 
absence of such conduct. The ``contributing factor'' test has 
been a feature of whistleblower statutes since 1989.\99\
---------------------------------------------------------------------------
    \99\Hearing, supra note 2 (testimony of David Michaels).
---------------------------------------------------------------------------
    A contributing factor is any factor which, alone or in 
combination with other factors, tends to affect in any way the 
outcome of the decision. To establish that protected activity 
was a contributing factor in the decision to take an adverse 
action, a complainant may rely on established means of proof 
such as timing, disparate treatment, and animus. However, the 
traditional Title VII requirement that the complainant prove 
that the employer's proffered reason is pretext is irrelevant 
in this framework, since in any retaliation there may be 
multiple factors, only one of which need be complainant's 
protected activity. Thus, a complainant may demonstrate by a 
preponderance of the evidence that the employer's reason, while 
true, is only one of the reasons for its action, so long as 
another factor is the complainant's protected activity.
    Moreover, once the complainant proves that his protected 
activity was a contributing factor, a decision and order 
favorable to the complainant must be issued, unless the 
respondent demonstrates by clear and convincing evidence that 
it would have taken the same adverse action in the absence of 
the protected activity. Clear and convincing evidence is that 
which demonstrates that it is highly probable that the 
affirmative defense is true.
    Several professional health and safety organizations, 
including the American Public Health Association, ORC 
Worldwide, and the American Industrial Hygiene Association 
support these updated whistleblower provisions.

                       SEC. 702--VICTIMS' RIGHTS

    Problem: OSHA is required to investigate all fatalities and 
any accident resulting in the hospitalization of three or more 
employees.\100\ Victims and family members who suffer grievous 
losses can provide very useful information and ideas during the 
investigatory stage and into the enforcement process.\101\ 
However, the OSH Act is currently silent with regard to the 
rights of victims and their families. OSHA has guidance that 
instructs field staff to keep victims and their families 
informed about investigations of fatalities and incidents 
involving serious injuries or illnesses.\102\ However, as a 
matter of practice, OHSA only keeps victims and family members 
informed on a sporadic basis, and in general does not provide 
families with any meaningful input into the process. As 
Assistant Secretary Michaels testified at the Committee's July 
13, 2010, legislative hearing on H.R. 5663: ``No one is more 
affected by a workplace tragedy than workers and their 
families.''\103\ Victims and their families should be granted 
some basic rights to access information during OSHA's 
investigatory and enforcement process.
---------------------------------------------------------------------------
    \100\29 C.F.R. 1960.29(b).
    \101\Hearing, supra note 83 (testimony of Celeste Monforton).
    \102\Directorate of Enforcement Programs, OSHA, Fatality/
Catastrophe Investigation Procedure, Directive No. CPL 02-00-137 (April 
14, 2005). In addition, under the Directive, the Area Director must 
send a standard information letter to the employee's emergency contact 
or next of kin and keep them up to date on the investigation, including 
providing them with a copy of all citations, settlement agreements, and 
decisions of the Occupational Safety and Health Review Commission 
(OSHRC) as soon as they are available.
    \103\Hearing, supra note 2 (testimony of David Michaels).
---------------------------------------------------------------------------
    Solution: Section 702 amends section 658 of the OSH Act by 
giving a seriously injured worker or family member the right 
to: meet with OSHA prior to the issuance of a citation; receive 
copies of a citation at no cost; be informed of any notice of 
contest and receive pleadings regarding appeals before the 
Occupational Safety and Health Review Commission (OSHRC); and, 
make a statement in the presence of the parties (or provide a 
written statement to the parties) before any agreement to 
withdraw or modify a citation is finalized. Under section 702, 
a family member would be provided the opportunity to appear and 
make a statement before the Review Commission, but would not be 
conferred formal ``party status''. Before making its decision, 
the OSHRC would be required to provide due consideration of the 
statement or any other information provided by the victim or a 
family member. It is the intent that such statement or 
information should be provided the same weight as provided to a 
party that was granted permission to participate as an amicus 
curae. Section 702 provides for the designation of at least one 
employee in each area office to serve as a family liaison to 
keep victims and family members informed of the status of 
investigations, enforcement actions and settlement 
negotiations, and to assist them in asserting their rights 
under this section.

   SEC. 703--CORRECTION OF SERIOUS, WILLFUL, OR REPEATED VIOLATIONS 
               PENDING CONTEST AND PROCEDURES FOR A STAY

    Problem: Section 9(a) of the OSH Act requires that each 
citation ``fix a reasonable time for the abatement of the 
violation,'' but it provides little incentive for prompt 
abatement because the abatement period does not begin to run 
until after litigation before the OSHRC has concluded. Thus, an 
employer that challenges an OSHA citation can delay correction 
of cited violations for ``months or years after the hazard has 
been identified.''\104\ When hazards are not corrected because 
of lengthy contest proceedings, there are real consequences for 
workers. OSHA recently conducted an analysis and found that 
between FY1999 and FY2009, there were 33 contested cases that 
had a subsequent fatality at the same site prior to the 
issuance of a final order.\105\
---------------------------------------------------------------------------
    \104\Id.
    \105\Id.
---------------------------------------------------------------------------
    Oregon, which has its own OSHA state-plan, requires 
employers to abate violations during the contest period for 
serious violations. This provision, which was adopted in 1977, 
has been in place for over 30 years and has never been 
challenged in court. In addition, Oregon's OSHA program has no 
record of any employer having sought a formal stay of abatement 
even though Oregon provides employers the right to petition for 
one. Moreover, according to Michael Wood, the administrator of 
the Oregon OSHA state-plan, one of the many advantages of 
requiring abatement during contest is that in settlement 
negotiations, there is no pressure to settle in order to 
achieve corrections of hazards in a timely manner. As such, 
Oregon consistently has a relatively high rate of retaining 
penalties originally issued.
    The overwhelming majority of employers abates violations in 
a timely manner and do not contest their OSHA citations. In 
fact, in 2009, only 7.1% of inspections with citations were 
contested by employers.\106\
---------------------------------------------------------------------------
    \106\Hearing, supra note 2 (testimony of Lynn Rhinehart).
---------------------------------------------------------------------------
    There is precedent for requiring prompt abatement. Under 
the Mine Act, employers are required to abate hazards 
identified by MSHA within a reasonable abatement period. Unless 
the operator obtains temporary relief, the operator must abate 
the violation while litigation is ongoing. As far back as 1992, 
and based on MSHA's experience, GAO suggested that Congress 
require protection of workers while employer contests are 
pending.\107\
---------------------------------------------------------------------------
    \107\GAO, Occupational Safety and Health: Options to Improve Hazard 
Abatement Procedures in the Workplace, HRD-92-105 (1992).
---------------------------------------------------------------------------
    Solution: Section 703 would amend the OSHA Act to require 
that the employer abate all serious, willful or repeat 
violations within the period designated by the Secretary and 
that an employer's contest to the OSHRC shall not operate to 
postpone the requirement to correct the violation. However, the 
existing provisions of the OSHA Act, which permit the employer 
to toll the requirement to abate violations that are not 
serious, willful or repeated, would remain unchanged.
    Section 703 provides due process by permitting an employer 
to immediately apply to the OSHRC for a stay of the abatement 
if it is contesting the violation or if it believes that the 
time set for abatement is unreasonable. At a proceeding on the 
stay, which must be held on an expedited basis, the employer 
must show both that it has a substantial likelihood of success 
on the underlying violation and that a stay will not adversely 
affect the health and safety of workers. OSHRC is required to 
develop rules for conducting a hearing on an expedited basis, 
but outlines the minimum requirements for the process: the 
hearing must be held within 15 days following the application 
and a decision must be provided by an ALJ within 15 days after 
the hearing (unless the employer seeks an extension). The 
employer is entitled to appeal the ALJ's decision by filing an 
objection with the Commission within 5 days of the receipt of 
the decision. The Commission, so long as a quorum is present, 
must decide whether to grant review within 10 days, and if it 
does must issue a decision within 30 days after the receipt of 
an objection.
    If no decision has been made on whether to grant review, or 
the Commission declines the review, or after granting review, 
it does not make a decision on a timely basis, the ALJ's 
decision becomes the final order of the Commission.
    The Committee understands that there is a hypothetical 
possibility that requiring abatement of a serious violation 
during contest may force a few employers who could ultimately 
prevail in their challenge to a citation to spend money to 
correct problems that are not ultimately sustained by the 
OSHRC. However, based on Oregon's experience, this concern 
appears remote, if not entirely misplaced. The expedited stay 
proceeding provided in section 704 is available to those 
employers who believe that the time set by OSHA for abatement 
is unreasonable and should be extended. An employer can 
petition for modification of the abatement period in Oregon as 
well. The bill ensures both due process rights to challenge a 
citation and the timely correction of serious hazards that 
could cause serious bodily injury or death.

             SEC. 705 AND 706--CIVIL AND CRIMINAL PENALTIES

    Problem: Civil penalties for workplace safety and health 
violations under the OSH Act are inadequate and often 
considered the cost of doing business. The average penalty for 
assessed serious violations of the OSH Act is less than $1,000. 
In 2009, the median penalty assessment for all OSHA 
investigations involving a fatality was $6,750; after 
negotiations, the penalty was reduced to $5,000.\108\ Even for 
a willful violation that causes the death of a worker, the 
median penalty in 2009 was $29,400 less than one half of the 
statutory maximum.\109\ In addition, these penalties, which 
have not been increased in 20 years, are not adjusted to 
account for inflation, which reduces their real dollar value by 
nearly 40%. Except for the IRS, OSHA is the only federal 
enforcement agency that is not covered by the Federal Civil 
Penalties Inflation Adjustment Act of 1990, which mandates that 
agencies re-calculate their penalties once every 4 years to 
account for inflation. At the Committee's July 13, 2010, 
legislative hearing Assistant Secretary Michaels pointed out 
since OSHA can visit only a limited number of workplaces, 
adequate civil (and criminal) penalties can make employers 
``think again'' about ignoring health and safety 
standards.\110\
---------------------------------------------------------------------------
    \108\Hearing, supra note 2 (testimony of Lynn Rhinehart).
    \109\AFL-CIO, supra note 55, at 16.
    \110\Hearing, supra note 2 (testimony of David Michaels).
---------------------------------------------------------------------------
    He also pointed out how woefully inadequate these penalties 
are as compared to other laws:

          The Department of Agriculture is authorized to impose 
        a fine of up to $140,000 on milk processors for willful 
        violations of the Fluid Milk Promotion Act, which 
        include refusal to pay fees and assessments to help 
        advertise and research fluid milk products. The Federal 
        Communications Commission can fine a TV or radio 
        station up to $325,000 when a performer curses on air. 
        The Environmental Protection Agency can impose a 
        penalty of $270,000 for violations of the Clean Air Act 
        and a penalty of $1 million for attempting to tamper 
        with a public water system. Yet, the maximum civil 
        penalty OSHA may impose when a hard-working man or 
        woman is killed on the job--even when the death is 
        caused by a willful violation of an OSHA requirement--
        is $70,000.\111\

    \111\Id.
---------------------------------------------------------------------------
    Assistant Secretary Michaels also related the story of Jeff 
Davis who was killed while working at an oil refinery in 
Delaware in 2001. At the refinery, a tank full of sulfuric acid 
exploded, and the body of Jeff Davis ``literally dissolved in 
the acid.'' OSHA's penalty was $175,000. Yet, in the same 
incident, the EPA found thousands of dead fish and crabs and 
assessed the employer with a $10 million fine for violations of 
the Clean Water Act.
    This Committee has also examined the limitations that OSHA 
has with regard to enforcement against multi-state employers 
with poor safety and health records at more than one of its 
establishments.\112\ On March 6, 2007, Mr. Torres-Gomez, a 46-
year old Cintas washroom employee, died in an accident at 
Cintas' Tulsa, Oklahoma, plant when he was caught by a large 
robotic conveyor used to transfer uniforms from washers to 
dryers, and died inside the dryer as it operated for 20 minutes 
at 300 degrees.
---------------------------------------------------------------------------
    \112\Improving Workplace Safety: Strengthening OSHA Enforcement of 
Multi-Site Employers: Hearing Before the Subcomm. on Workforce 
Protection of the H. Comm. on Education and Labor, 110th Cong. (2008). 
http://edlabor.house.gov/hearings/2008/04/improving-workplace-safety-
str.shtml.
---------------------------------------------------------------------------
    Cintas is the largest uniform supplier in North America, 
with more than 400 facilities employing more than 34,000 
people. About two years before the Tulsa incident, on July 7, 
2005, OSHA alerted employers, workers and inspectors about the 
need for special protection from robotic laundry shuttle 
equipment like the one used at the Tulsa plant. And one month 
later, on August 8, 2005, at the request of Cintas employees 
concerned about this hazard, OSHA inspectors investigated the 
company's Central Islip, NY, facility and cited the company for 
the very violations which the bulletin addressed. Cintas 
installed commercially-available guarding technology at Islip 
but failed to address the same deadly hazard in its Tulsa 
plant.
    The Committee discovered that failures to address safety 
hazards on a company-wide basis was a common problem, and that 
OSHA's ``Enhanced Enforcement Program'' (EEP),\113\ which was 
adopted for this very purpose, was wholly inadequate.\114\ 
While the EEP program looked good on paper, it was too limited. 
First, it left OSHA with too much discretion on whether to 
follow the policy or not, resulting in inconsistency in its use 
by area offices. Moreover, OSHA's own data from 2003 to 2008 
showed that while the Agency designated about 2,000 cases for 
enforcement under EEP, the program was in fact not being used 
to target multi-site employers.\115\ Frank White, Vice-
President of ORC Worldwide, a management and consulting 
membership firm for business, testified before the Workforce 
Protection Subcommittee that the EEP had only been used by OSHA 
in a limited fashion.\116\
---------------------------------------------------------------------------
    \113\OSHA News Release, March 11, 2003.
    \114\Hearing, supra note 112 (testimony of Randy Rabinowitz). Ms. 
Rabinowitz testified that, ``The EEP program was adopted in response to 
the New York Times/Frontline expose on corporate-wide indifference to 
health and safety at the McWane Company, and OSHA's inability to 
identify the horrifying pattern of misconduct at the company. Under the 
policy, when OSHA identifies high gravity serious violations at a 
facility, it considers whether to initiate additional enforcement 
action at that facility or at others.''
    \115\Id.
    \116\Hearing, supra note 112 (testimony of Frank White).
---------------------------------------------------------------------------
    OSHA has now recognized that the EEP has not been 
effective, and on June 18, 2010, OSHA published Directive CPL 
02-00-149\117\ establishing its Severe Violator Enforcement 
Program (SVEP), which replaces the EEP. The Directive states 
that the SVEP will focus on ``inspecting employers who have 
demonstrated indifference to their OSH Act obligations by 
committing willful, repeated, or failure-to-abate 
violations.''\118\
---------------------------------------------------------------------------
    \117\http://www.osha.gov/pls/oshaweb/
owadisp.show_document?p_table=DIRECTIVES&p;_
id=4503.
    \118\Id.
---------------------------------------------------------------------------
    According to OSHA, its SVEP enforcement actions for 
``severe violator cases'' include ``mandatory follow-up 
inspections, increased company/corporate awareness of OSHA 
enforcement, corporate-wide agreements, where appropriate, 
enhanced settlement provisions, and federal court enforcement 
under Section 11(b) of the OSH Act.''\119\ The new system also 
provides for nationwide referral procedures, including for OSHA 
state plans. The SVEP, which will target severe violators, is a 
step in the right direction in addressing hazards at companies 
with multi-state facilities.
---------------------------------------------------------------------------
    \119\Id.
---------------------------------------------------------------------------
    Finally, under current law, OSHA cannot cite an employer 
for a repeat violation if the original violation occurred in 
one of the states with its own OSHA state plan. Assistant 
Secretary Michaels explained the consequences of this weakness 
in the present civil penalty structure:

          If a roofer who was not provided fall protection is 
        killed after falling from a roof in Ohio, OSHA will 
        investigate and determine, among other things, if other 
        employees of that contractor had ever been injured or 
        killed under similar circumstances. If OSHA had 
        previously cited that employer for violations of our 
        fall protection rules in a state where we have 
        jurisdiction, we could cite the employer for a repeat 
        violation. However, if the previous violation had 
        occurred in nearby Indiana or Kentucky, perhaps just a 
        few miles from the site of the fatality, the law states 
        that we could not classify the events around the 
        fatality as a repeat violation, even if the original 
        violation involved a worker who was killed under 
        identical circumstances--simply because they were in 
        State Plan states. This defies any common sense 
        definition of a repeat violation. Enhanced civil 
        penalties and an improved mechanism for going after 
        repeatedly recalcitrant employers are much needed.\120\
---------------------------------------------------------------------------
    \120\Hearing, supra note 50 (testimony of David Michaels).

    If civil OSH Act penalties are too meager to serve as a 
deterrent, the threat of criminal prosecution for OSH Act 
violations for a fatality is even less of a threat. These 
criminal sanctions only apply in the case of a fatality, and 
prosecutors are reluctant to spend their limited resources on 
these cases, not because they don't have merit, but because 
they are misdemeanors and, upon conviction, the penalties--up 
to 6 months in jail and a $10,000 fine--are simply a ``slap on 
the wrist.'' Under the Resource Conservation and Recovery Act 
(RCRA), which regulates the treatment and disposal of hazardous 
waste, it is a felony (with up to 15 years in jail/up to 
$250,000 for an individual; $1 million for an organization) to 
knowingly endanger a person (including a worker) during the 
commission of a hazardous waste violation. A death or serious 
injury is not required for a conviction. The Clean Water Act 
and the Clean Air Act have similar criminal provisions. Even 
under the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. 
1338, a defendant can receive up to one year in jail for 
harassing a wild horse or burro on public lands.\121\
---------------------------------------------------------------------------
    \121\Id.
---------------------------------------------------------------------------
    In the 40 years since the passage of the OSH Act, fewer 
than 80 cases have been criminally prosecuted, resulting in a 
total of about 89 months in jail.\122\ During this time over 
300,000 employees died in workplace incidents.\123\ By 
contrast, in 2009 alone, 387 criminal enforcement cases were 
initiated under the criminal environmental laws (including the 
Clean Air Act and the Clean Water Act) involving 200 
defendants, resulting in 76 years of jail time and $96 million 
in fines.\124\ There are more cases, fines and jail time in one 
year under these two environmental laws than has ever been 
imposed under the OSH Act in its entire 40-year history.
---------------------------------------------------------------------------
    \122\Hearing, supra note 2 (testimony of Lynn Rhinehart).
    \123\AFL-CIO, supra note 55, at 16.
    \124\Id.
---------------------------------------------------------------------------
    In addition, the OSH Act applies to ``willful'' violations. 
``Willful'' is a mens rea standard which has been interpreted 
by the OSHA OSHRC, the administrative body that reviews 
contested penalties and assesses civil penalties, to mean ``an 
intentional violation of the Act or plain indifference to its 
requirements.''\125\ Under the Commission's interpretation of 
willful, knowledge of the law is not required to find that an 
employer has committed a willful violation; they need only be 
aware ``that a condition was hazardous to the safety or health 
of employees and made little or no effort to determine the 
extent of the problem or take corrective action.''\126\
---------------------------------------------------------------------------
    \125\Are OSHA's Penalties Adequate to Deter Health and Safety 
Violations? Hearing Before the H. Comm. on Education and Labor, 111th 
Cong. (2009) (testimony of David Uhlmann). See United States v. Dye 
Construction, 510 F.2d 78 (10th Cir. 1975) (criminal violation); see 
also Valdak Corp. v. OSHRC, 73 F.3d 1466 (8th Cir. 1996); and Ensign-
Bickford Co., v. OSHRC, 717 F.2d 1419, 1422 (D.C Cir. 1983), cert. 
denied, 104 S. Ct 1909 (1984) (administrative violations).
    \126\Hearing, supra note 125 (testimony of David Uhlmann).
---------------------------------------------------------------------------
    Some courts have approved this interpretation of 
``willful'' in cases reviewing the Commission's administrative 
determinations. For example, the 8th and D.C. Circuits found 
willful violations of OSHA health and safety standards when the 
owner of a car wash knew that a lock on his industrial dryer 
was broken but failed to fix it, resulting in the amputation of 
an employee's arm,\127\ and when a fireworks company knew of 
the dangers of combustible materials being used in certain 
procedures but failed to prevent an explosion.\128\ At least 
one court has also applied this interpretation in the criminal 
context. In United States v. Dye Construction, the 10th Circuit 
held that a construction company willfully failed to comply 
with an OSHA safety standard when it did not support the sides 
of a trench, resulting in the trench's collapse and the death 
of an employee.\129\ The Court defined a willful violation as 
one ``done knowingly and purposely by an employer who, having a 
free will or choice, either intentionally disregards the 
standard or is plainly indifferent to its requirement.''\130\
---------------------------------------------------------------------------
    \127\Valdak Corp. v. OSHRC, 73 F.3d 1466 (8th Cir. 1996).
    \128\Ensign-Bickford Co., v. OSHRC, 717 F.2d 1419, 1422 (D.C Cir. 
1983), cert. denied, 104 S. Ct 1909 (1984).
    \129\510 F.2d 78 (10th Cir. 1975).
    \130\Id. at 81.
---------------------------------------------------------------------------
    This administrative definition is similar to the 
``knowing'' standard under environmental and other criminal 
laws, which requires that a defendant possess knowledge of the 
facts that constitute the offense, not knowledge that the 
conduct at issue was unlawful. However, in most criminal 
contexts, ``willful'' connotes a higher mental state 
requirement,\131\ which requires that the defendant ``acted 
with the knowledge that his conduct was unlawful.''\132\ Under 
those circumstances, a defendant could escape liability if he 
committed a willful violation that killed a worker, but was not 
aware he was breaking the law. As David Uhlmann, a professor at 
the University of Michigan Law School and former Chief of the 
Environmental Crimes Division pointed out in testimony to the 
Committee in 2009, the requirement of a ``willful'' criminal 
standard ``could make ignorance of the law a defense, contrary 
to the time-honored maxim of American jurisprudence that 
ignorance of the law is not an excuse.''\133\ The Committee 
believes that to ensure consistency and the even application of 
the OSH Act's criminal provision, the ``willful'' standard 
should be changed to a ``knowing'' one.
---------------------------------------------------------------------------
    \131\Protecting America's Workers Act: Modernizing OSHA Penalties: 
Hearing Before the Subcomm. on Workforce Protections of the H. Comm. on 
Education and Labor, 111th Cong. (2010) (testimony of John Cruden).
    \132\Hearing, supra note 125 (testimony of David Uhlmann).
    \133\Id.
---------------------------------------------------------------------------
    In addition, only ``employers'' (which consists of sole 
proprietors and corporate entities), and not corporate officers 
and directors, can be prosecuted for criminal violations of the 
OSH Act. This means that those individuals who engage in the 
criminal conduct are immune from prosecution. This is contrary 
to the environmental laws and the Mine Act, which provide for 
liability for those officials.\134\ The case of United States 
v. Hansen,\135\ is instructive on this point. In that matter, 
the chief executive officer, vice-president and plant manager 
of Hansen, a chemical company that manufactured bleach, soda, 
gas, and acid, were charged and convicted under the Clean Water 
Act for knowingly endangering workers who often stood in 
contaminated water while at work. They were sentenced to prison 
(108 months for the CEO; 46 months for the VP; and 78 months 
for the plant manager) for their illegal conduct. While the 
company had also been cited for willful violations under the 
OSH Act, the individual officers could not have been 
prosecuted, and no one was killed as a result of their actions.
---------------------------------------------------------------------------
    \134\Hearing, supra note 2 (testimony of Lynn Rhinehart).
    \135\United States v. Hansen, 262 F. 3d 1217 (11th Cir. 2001).
---------------------------------------------------------------------------
    In 2005, the Environmental Crimes Division at the 
Department of Justice launched its Worker Endangerment 
Initiative (WEI) with the goal of prosecuting those companies 
and company officials who systematically violate both federal 
environmental and worker safety laws. This initiative has been 
very successful only because of the strong criminal enforcement 
provisions in the federal environmental and criminal laws; of 
the hundreds of cases that have been successfully prosecuted, 
only two have involved convictions under the OSH Act.\136\
---------------------------------------------------------------------------
    \136\Hearing, supra note 131 (testimony of John Cruden).
---------------------------------------------------------------------------
    One of the 2 cases involved McWane, a privately owned 
company and one of the largest pipe manufacturers in the world. 
During the 1990's and the first part of this decade, its 
facilities were extremely dangerous places to work. From 1995 
to 2003, 4,600 of its workers were injured. However, despite 
McWane's dismal safety record, the only time it had been 
convicted criminally was in 2002 when it was found guilty of a 
misdemeanor under the criminal provisions of the OSH Act for a 
willful violation, which caused the death of worker (he was 
crushed to death) at its facility in Tyler, Texas. McWane's 
safety issues became the subject of a series of articles in the 
New York Times and a story on Frontline.\137\
---------------------------------------------------------------------------
    \137\Hearing, supra note 125 (testimony of David Uhlmann).
---------------------------------------------------------------------------
    Criminal cases against McWane for violations of the worker 
safety and environmental laws at five of its facilities ensued, 
including the Atlantic States facility in New Jersey, arguably 
the most dangerous of all its plants. McWane had engaged in a 
wide-spread conspiracy to violate health and safety laws, 
including its concealment of the death of a worker and the 
injuries of others. The Justice Department prosecuted the case 
under criminal and environmental laws. The company received a 
fine of $8 million and four individual defendants were 
sentenced from six months to 5 years in prison. No criminal 
charges were brought under the OSH Act. As Professor Uhlmann 
testified before this Committee in 2009, ``There were no 
criminal charges brought under the OSHA Act because there were 
no felony charges available, and the one possible misdemeanor 
count (for the worker death) would have lengthened the trial 
and distracted from the more serious felony charges.''\138\ 
McWane did plead guilty to criminal charges under the OSH Act 
for violations at its Union Foundry facility in Alabama and 
received a fine.\139\ However, because it had been convicted 
under federal environmental and other criminal laws that had 
stiff penalties, McWane and its management paid a high price. 
As a result, it has changed its behavior and has made a 
significant commitment to safety and to complying with 
regulatory laws.\140\
---------------------------------------------------------------------------
    \138\Id.
    \139\Id. The company (and senior management) was also convicted 
under the criminal and environmental laws for crimes committed at its 
four other facilities.
    \140\Id.
---------------------------------------------------------------------------
    This contrast between criminal penalties under the OSH Act 
and other laws is also illustrated by the result in United 
States vs. Elias.\141\ Allen Elias, the owner of a fertilizer 
company, ordered workers to remove cyanide-laced sludge from a 
25,000 gallon railroad car. He did not tell his employees what 
was in the car and did not provide them any personal protective 
equipment. When a worker named Scott Dominguez collapsed inside 
the car, Elias lied about the content of the sludge to both the 
emergency workers at the scene and the attending physician. The 
incident caused Mr. Dominguez to suffer permanent brain injury. 
Elias was convicted under RCRA (the Resource Conservation and 
Recovery Act),\142\ which regulates hazardous waste, and he 
received 17 years in prison and a $6 million fine. He could not 
be prosecuted under the OSH Act's criminal provisions because 
Mr. Dominguez did not die. And even if he could have been 
prosecuted and had been convicted, he would have only served 6 
months in jail and paid a $10,000 fine.\143\
---------------------------------------------------------------------------
    \141\269 F.3d 1003 (9th Cir. 2001).
    \142\42 U.S.C. Sec. Sec. 6901-6992.
    \143\Hearing, supra note 131 (testimony of John Cruden).
---------------------------------------------------------------------------
    A similar result occurred in the prosecution of BP after an 
explosion at its Texas City Refinery in Texas City, Texas in 
2005, an accident that killed 15 workers and injured 170 
others. For its violations of health and safety laws, BP 
settled with OSHA and paid a $21 million civil penalty. The 
Justice Department successfully prosecuted BP under its 
criminal provisions in the Clean Air Act, and BP agreed to pay 
a $50 million fine.\144\
---------------------------------------------------------------------------
    \144\Hearing, supra note 2 (testimony of Lynn Rhinehart).
---------------------------------------------------------------------------
    Only a small percentage of workplace facilities and serious 
injuries involve the release of harmful substances into the 
environment. In 2007, for example, only 9% of worker fatalities 
involved a violation of an environmental law.\145\ Thus, 
environmental laws cannot serve as a replacement for OSHA's 
criminal provisions.
---------------------------------------------------------------------------
    \145\Hearing, supra note 125 (testimony of David Uhlmann).
---------------------------------------------------------------------------

                       SEC. 705--CIVIL PENALTIES

    Solution: To better deter future violations, Section 705 
increases the minimum penalty for a willful violation from 
$5,000 to $8,000 and increases its maximum penalty from $70,000 
to $120,000. A serious violation, defined as a violation that 
causes a substantial probability of death or serious harm, 
would be increased from a maximum of $7,000 to $12,000. These 
increases are intended to correct for the erosion due to 
inflation since 1990.\146\
---------------------------------------------------------------------------
    \146\Inflation adjusted penalties for a willful violation would be 
a minimum of $8,347 and a maximum of $116,851; for a serious or other 
than serious violation, a failure to correct a hazard, and a failure to 
post the penalty would be a maximum of $11,785.
---------------------------------------------------------------------------
    Under current law, there is no increase in penalty when a 
willful or serious violation results in a fatality. Given that 
OSHA's penalties are tied to the gravity of the harm, when a 
worker loses his or her life due to the employer's conduct, a 
higher penalty should apply. A willful violation resulting in a 
fatality would carry a minimum penalty of $50,000 and a maximum 
penalty of $250,000. An employer with 25 employees or less 
would pay a minimum fine of $25,000.
    A serious violation resulting in a fatality would carry a 
minimum penalty of $20,000 and a maximum of $50,000, and the 
minimum for an employer with 25 employees or less would be 
$10,000. An ``other than serious'' violation and a failure to 
comply with any OSHA posting requirements would be increased by 
a maximum of $7,000 to a maximum of $12,000. The failure to 
abate a safety or health hazard in the time set for that 
abatement, employers could be assessed a maximum daily penalty 
of $12,000 up from $7,000 under current law.
    Section 705 requires the Secretary and the OSHRC, in 
determining whether a violation is repeated, to consider the 
employer's history of violations, including violations that 
have occurred in state-plan states. Finally, Section 705 
mandates that the Secretary indexes these penalties for 
inflation at least once every 4 years.
    These penalties will not affect the ability of OSHA to 
settle cases, because the Agency retains the discretion to 
compromise a penalty so long as it is above the minimum 
prescribed in Section 705. In addition, while the provisions of 
Section 702 give families the right to be heard if a penalty is 
withdrawn or reduced, OSHA still has the authority to withdraw, 
reduce or re-designate violations.

                      SEC. 706--CRIMINAL PENALTIES

    Problem: While most companies comply with health and safety 
standards and other requirements in the OSH Act, they are at a 
competitive disadvantage with those that flout the law.\147\ 
This Committee believes that strong criminal penalties level 
the economic playing field for law abiding companies that 
devote significant resources to compliance with worker safety 
laws.
---------------------------------------------------------------------------
    \147\Hearing, supra note 131 (testimony of John Cruden).
---------------------------------------------------------------------------
    An aggressive criminal enforcement program provides an 
important deterrence to illegal activity. Assistant Secretary 
Michaels testified at the July 13, 3010 legislative hearing on 
H.R. 5663 that aggressive law enforcement activities in Texas 
and California in the 1980's dramatically improved occupational 
safety and health. In Texas, ``the number of trenching 
fatalities dropped from 15 to 2 in one year when one county 
adopted a well-publicized criminal prosecution effort.''\148\ 
As well, in Los Angeles County, officials established a 
criminal prosecution program that improved safety and health 
compliance. The Assistant Secretary also cited ongoing efforts 
by New York State to swiftly prosecute violators.\149\
---------------------------------------------------------------------------
    \148\Hearing, supra note 2 (testimony of David Michaels).
    \149\Id.
---------------------------------------------------------------------------
    According to Professor Uhlmann, strong criminal enforcement 
has other benefits as well. Where there is a ``credible 
enforcement threat, companies are quicker to resolve 
administrative penalty actions and respond more productively to 
regulatory actions.'' He testified that the OSHA inspectors 
trained as part of the WEI describe companies that are 
``indifferent or hostile to OSHA compliance officers.'' 
Professor Uhlmann testified ``that would not be the case if the 
OSHA enforcement scheme included a more significant criminal 
enforcement threat than the current OSHA Act provides.''\150\
---------------------------------------------------------------------------
    \150\Hearing, supra note 125 (testimony of David Uhlmann).
---------------------------------------------------------------------------
    The penalties for advance notice of an inspection or making 
false statements, which apply to individuals as well, are also 
misdemeanors, each carrying 6 month prison sentences. An 
advance notice of inspection carries a maximum fine of $1,000, 
while making a false statement has a maximum fine of $10,000. 
This Committee finds it inconceivable that there are only minor 
penalties for someone who tips off an employer that an 
inspector is on his way to inspect a workplace, particularly 
when advance notice allows an employer to temporarily fix 
hazards and hide others from view.
    Solution: Section 706 expands section 666(e) of the OSH Act 
by making ``knowing'' criminal violations a felony that can 
carry a maximum penalty of 10 years (and a fine in accordance 
with 18 U.S.C. Sec. 3571) for a first offense and 20 years (and 
a fine under 18 U.S.C. Sec. 3571) for a repeat offense. To be 
convicted the violation must significantly contribute to the 
death of an employee. Providing advance notice of an inspection 
carries a maximum prison term of 5 years or a fine pursuant to 
18 U.S.C. Sec. 3571, or both.
    Section 706 allows prosecutions resulting in a maximum 
prison term of 5 years for a first offense and 10 years for a 
second for knowing violations, which cause or significantly 
contribute to serious bodily harm. Under section 706, serious 
bodily harm is defined as a ``bodily injury that involves a 
substantial risk of death; protracted unconsciousness; 
protracted and obvious physical disfigurement; or protracted 
loss or impairment, either temporary or permanent, of the 
function of a bodily member, organ or mental faculty.'' The 
Committee believes that this definition of serious bodily harm 
is straightforward, includes only the most serious of harms, 
and is capable of objective application by courts, prosecutors, 
and juries. The Committee does not intend that routine, minor, 
everyday ailments be viewed as seriously bodily injury. These 
offenses also carry fines under 18 U.S.C. Sec. 3571.
    The Committee believes that the mental state (mens rea) 
requirement for criminal prosecutions under the OSH Act should 
be clarified so there is no doubt it conforms to the 
administrative standard developed by the OSHRC, and follows 
other federal criminal and environmental laws. As Assistant 
Secretary Michaels testified before this Committee: ``Using a 
knowing standard would ease the burden on prosecutors by 
harmonizing these worker safety provisions with similar (or 
comparable or analogous) crimes.\151\ The Department of Justice 
has urged this change as the best way to capture those 
employers who knowingly engage in illegal activity and a worker 
dies or is seriously injured.\152\
---------------------------------------------------------------------------
    \151\Hearing, supra note 2 (testimony of David Michaels).
    \152\Hearing, supra note 131 (testimony of John Cruden).
---------------------------------------------------------------------------
    Section 706 adds the term ``any officer or director'' to 
the definition of ``employer'' for purposes of criminal 
liability under the Act. This expanded provision is similar to 
the provisions of the Clean Air Act (42 U.S.C. Sec. 7401 et 
seq.) and Clean Water Act (33 U.S.C. Sec. 1319(c)(6)) that 
include ``responsible corporate officers'' among ``persons'' 
who may be held criminally liable under those statutes. The 
Committee intends this provision to criminalize only action or 
inaction by corporate officers or senior managers when they (1) 
know that the conduct is occurring, (2) have the authority and 
ability to correct, or cause the correction, of the act or 
condition, and (3) fail to exercise their authority to take 
appropriate action to prevent the action or correct the act or 
condition. The Committee also subscribes to the position, 
articulated in related case law, that the failure of the 
corporate official to have actual knowledge of the violative 
act or condition will not act as a barrier to criminal 
liability where there is evidence that the official knowingly 
shielded himself or herself from information necessary to gain 
requisite knowledge--in other words, was ``willfully blind'' to 
a violative act or condition.
    While the Committee believes that enhanced criminal 
penalties are a strong deterrent to violations of the OSH Act, 
given the hurdles that will still remain to successful 
prosecution, the potential universe of criminal OSHA cases will 
likely be small. Civil enforcement will remain predominant 
under the OSH Act. A criminal conviction is much harder to 
obtain than a finding of civil liability under the OSH Act. In 
criminal cases, the prosecution must prove each element of the 
violation beyond a reasonable doubt, whereas in civil cases 
OSHA only must prove the violation by a preponderance of the 
evidence. Also, under section 706 criminal cases, the 
prosecution must demonstrate that the violation caused or 
significantly contributed to the death or serious bodily injury 
of an employee. Both of these hurdles will undoubtedly 
influence the Secretary's decision in referring cases to the 
DOJ and its decision as to whether to seek prosecution.
    Finally, the Committee has no intention of impeding state 
efforts to criminally prosecute those who flout safety and 
health laws. Therefore, Section 706 provides that nothing in 
the OSH Act shall preclude criminal prosecution under these 
state and local laws of general applicability.

                   SEC. 707--PRE-FINAL ORDER INTEREST

    Problem: There is little in current law to discourage 
employers from filing contests to gain the benefit of the time 
value of money. One tool that would assist OSHA would be the 
authority to assess pre-judgment interest. In addition, to be 
consistent with the Mine Act, the same post-judgment interest 
rate should apply to OSH penalties.
    Solution: The bill authorizes prejudgment interest from the 
date of contest to the date of final order at the rate charged 
by the IRS. Interest is not payable if the employer prevails. 
Post-judgment interest is already authorized, and this 
legislation sets an 8% interest rate, the same as the Mine Act.

     SEC. 708--REVIEW OF STATE OCCUPATIONAL SAFETY AND HEALTH PLANS

    Problem: Currently, under Section 20(a)(6) of the OSH Act, 
only an employer or authorized representative of a worker may 
request NIOSH to conduct a Health Hazard Evaluation (HHE) of 
workers' exposures to toxic substances. Yet physicians and 
state or local health departments often are the first to be 
made aware of new and emerging health hazards, while other 
federal agencies often are made aware of potential occupational 
hazards when addressing other issues at a workplace.
    Since the enactment of the OSH Act, substances other than 
toxic substances, such as ``a physical agent, equipment or 
working conditions'' have been recognized as important hazards 
to worker health. The HHE Program does not have authority to 
address a hazard other than a ``substance'' in a general 
working environment (OSH Act), although the program can address 
a ``substance or physical agent'' in a mining environment under 
the Miner Act.
    Solution: As the percentage of workers represented by 
organized labor has declined since the passage of the OSH Act, 
the need to allow for other entities to request assistance from 
NIOSH has become evident. Section 708 expands the list of those 
individuals who can request that NIOSH conduct a HHE to include 
representatives of former workers, physician, another federal 
agency, or a state or local health department. It also expands 
the issues that can be covered in a HHE to go beyond toxic 
substances to include physical agents, equipment, or working 
conditions.

                        SEC. 711--EFFECTIVE DATE

    The Committee intends for the provisions of Title VII to 
take effect as soon as possible and provides for an effective 
date of 90 days after enactment. In addition, section 711 
requires state-plan states to amend their plans to conform to 
Title VII within 12 months after enactment. However, the 
Committee does recognize that because some state legislatures 
do not meet every year, it is possible that a state-plan state 
could not meet the 12-month deadline. As such, Section 711 
provides that the Secretary may provide an extension to a 
state-plan state by an additional 12 months. In that case, the 
provisions of Title VII would take place within 90 days after 
the state adopts the amendments.

Amendment at Mark-up Related to OSHA

    On July 21, 2010, the Committee marked up H.R. 5663, and 
one amendment to the OSH Act was voice voted and approved. The 
Titus Amendment amends section 667 of the OSH Act by 
establishing a formal mechanism for OSHA to identify a problem 
with a state plan and compelling a remedy without beginning the 
process for withdrawing approval; ensures continued application 
of health and safety regulations by providing OSHA with 
concurrent enforcement authority for the duration of the time 
that a state plan is formally remedying deficiencies or being 
withdrawn, after 30 days notice of official federal action and 
an opportunity for a public hearing; and holds federal OSHA 
accountable for providing strong oversight and guidance to 
state plans by establishing a regular Government Accountability 
Office (GAO) study--one every five years--to look at the 
effectiveness of state plans and the Secretary of Labor's 
oversight of such plans.
    Worker safety will benefit to the extent that OSHA has 
tools to ensure that state OSHA plans are at least as effective 
as federal OSHA standards and enforcement, by giving federal 
OSHA options other than complete plan termination when a state 
plan is found to be underperforming. For the 27 states/
territories with approved state plans, OSHA is very few tools, 
short of the threat of termination, to compel a state to better 
enforce worker safety and health laws. It can request that the 
state do so and hope the state complies or terminate the state 
plan altogether, which is an extreme step that would remove 
state control, leave state and local government employees 
unprotected, and add costs to DOL for funding and running a 
health and safety program in the state. The Titus amendment 
provides a middle ground between these extremes.
    The Committee also recommends that the Secretary, in 
consultation with State plans, establish minimum staffing 
benchmarks in each State and update these benchmarks at least 
every 5 years. The factors to be consider in establishing these 
benchmarks should include the number of employers, the heavy 
industry population, the number of employees, and the size of 
vulnerable worker populations.

                     V. Section-by-Section Analysis

    Sec. 1--Short Title, Table of Contents. The Act may be 
cited as the ``Robert C. Byrd Miner Safety and Health Act of 
2010.''
    Sec. 2--References. Except in Title VII or otherwise 
expressly provided, an amendment will be considered made to the 
Federal Mine Safety and Health Act of 1977.

       TITLE I--ADDITIONAL INSPECTION AND INVESTIGATION AUTHORITY

    Sec. 101.--Independent Accident Investigations. Requires 
independent investigations of any mine accident involving 3 or 
more deaths, or for other severe accidents as designated by the 
HHS Secretary. The HHS Secretary appoints a 5-member Panel 
which is chaired by a representative from National Institute 
for Occupational Safety and Health's (NIOSH) Office of Mine 
Safety Research. The Panel must include members with expertise 
in accident investigations, mine engineering, or mine safety 
and health; and include one individual who represents mine 
operators and one representative of a labor organization that 
represents miners. The Panel is charged with investigating and 
preparing a report on the causes and contributing factors of 
the accident, including acts or omissions by MSHA itself. The 
report must identify the strengths and weaknesses in MSHA's 
accident investigation, and include recommendations to prevent 
recurrence. Within 90 days of enactment, the Secretary of HHS 
must establish procedures to ensure the consistency and 
effectiveness of these investigations, and enter into a 
Memorandum of Understanding with the Secretary of Labor to 
facilitate coordination and provide access for Panel members to 
MSHA's investigative activities, interviews and information. 
The Committee urges that this Memorandum be made public.
    Sec. 102.--Subpoena Authority and Miner Rights During 
Inspections and Investigations. Provides MSHA the authority to 
subpoena documents and testimony in carrying out inspections 
and investigations. MSHA lacks authority to subpoena witnesses 
or documents, except when it is conducting an accident 
investigation through a public hearing. Clarifies that MSHA (or 
a DOL attorney) can interview mine employees and other 
individuals with relevant information privately without the 
presence, involvement, or knowledge of the operator, his agent, 
or attorney, provided that an individual may bring his own 
attorney to any interview.
    Voluntary safety and health self-audits are conducted by 
some mine operators to identify violations or hazards and 
establish corrective actions plans. Effective July 28, 2000, 
the Occupational Safety and Health Administration issued a 
policy which provides that the agency will not routinely 
request self-audit reports at the initiation of an inspection, 
and the Agency will not use self audit reports as a means of 
identifying hazards upon which to focus during an 
investigation. In addition, where a voluntary self audit 
identifies a hazardous condition and the employer has corrected 
the violative condition prior to the initiation of any 
inspection and taken steps to prevent the recurrence of the 
condition, the Agency will refrain from issuing a citation. To 
encourage voluntary self audits and prompt corrective actions, 
the Secretary is urged to develop a similar policy with regards 
to the Mine Act.
    Sec. 103.--Designation of Miner Representative. Provides 
that, if a miner is trapped in a mine or is otherwise prevented 
as a result of an accident to designate a representative, this 
Act authorizes the closest relative of the miner to designate 
such a representative (current law says only a miner can 
designate a representative). Authorizes a representative of 
miners to participate in accident investigations, including 
interviews, unless the Secretary in consultation with the 
Attorney General excludes such representatives from the 
investigation on the grounds that inclusion would interfere 
with or adversely impact a criminal investigation that is 
pending or under consideration.
    Sec. 104.--Additional Amendments Relating to Inspections 
and Investigations. Clarifies that inspections are to be 
conducted by MSHA inspectors during all shifts and days of the 
week when miners are present.
    Directs the Secretary of Labor to review the Secretary's 
most recent evaluation for a mine's pattern status with 
appropriate mine officials during a regular inspection, if so 
requested.
    Requires that operators and contractors report occupational 
injuries, illnesses, deaths, and man-hours worked for miners in 
their employ or under their direction or authority for each 
mine, and requires that these reports or logs submitted to MSHA 
shall be signed and certified as accurate and complete by a 
knowledgeable and responsible person possessing a certification 
or other approval issued by MSHA or a state agency that issues 
miner certifications. Knowingly falsifying such records or 
reports shall be grounds for revoking such certification under 
standards established by MSHA for certifications issued by 
states or MSHA. In establishing mandatory certification 
standards for MSHA or the states under Section 118(b)(1), the 
section requires that one basis for revocation include knowing 
falsification of accident, injury, illness and man-hours 
reports required by the Secretary under Section 103 of the Mine 
Act.
    Following an accident, authorizes MSHA to issue ``control 
orders'' under Section 103(k) of the Mine Act without having to 
be physically present. Current law requires MSHA to be 
physically present to issue such orders.
    An operator's attorney is prohibited from representing both 
the operator and any other individual, including a miner, in an 
accident investigation unless there is a voluntary and knowing 
waiver of all foreseeable conflicts of interest by the 
individual. Authorizes the Secretary to petition a federal 
district court to disqualify such attorney as counsel to an 
individual, if the Secretary finds that such individual cannot 
be adequately represented due to conflicts of interest.

                TITLE II--ENHANCED ENFORCEMENT AUTHORITY

    Sec. 201.--Technical Amendment. Clarifies that the 
Secretary may cite an employer not only for violations of 
mandatory health and safety standards under Section 104(d), but 
also for any violations of the Mine Act, or regulations 
promulgated under the Mine Act.
    Sec. 202.--A Pattern of Recurring Noncompliance or 
Accidents. Mines with significantly poor compliance with health 
and safety standards that result in unsafe or unhealthy 
conditions shall be placed in ``pattern status,'' if the mine 
has a pattern of:
          (1) citations for S&S; violations;
          (2) citations and withdrawal orders caused by an 
        unwarrantable failure to comply with mandatory health 
        and safety standards;
          (3) withdrawal orders for imminent danger or 
        withdrawal orders under any other section of the Act;
          (4) citations for flagrant violations; and
          (5) accidents or injuries; or
          (6) any combination of these citations, orders, 
        accidents and injuries.
    In establishing regulations to trigger pattern status, MSHA 
must consider the frequency and rates of citations, and the 
rates of reportable accidents and injuries within the preceding 
180-day period, and assign weights to citations, orders, 
illnesses or injuries or other factors. In addition, MSHA may 
consider other factors, such as mine type, production levels, 
number of miners, hours worked, number of mechanized mining 
units, and the designation of representatives of miners at the 
mine, and the mine's history of noncompliance or rates of 
reportable incidents and injuries. Excluded from the orders 
counted towards pattern status are the so-called ``control 
orders'' under Section 103(j) or 103(k) of the Act, which MSHA 
issues after accidents to protect miners' lives and facilitate 
rescue and recovery.
    Citations are the basis for placing a mine in pattern 
status--not final orders. MSHA is required to issue a final 
interim regulation that defines the threshold criteria that 
triggers pattern status and the performance benchmarks 120 days 
after enactment. A final rule is required 2 years after the 
date of enactment.
    Not less than once every six months, MSHA must identify 
mines which meet the criteria to trigger pattern status.
    MSHA has the discretion not to place an otherwise 
qualifying mine in pattern status if it certifies that there 
are mitigating circumstances wherein the operator has already 
implemented remedial measures which has eliminated any elevated 
risk to the safety and health of miners, and has taken 
sufficient measures to ensure that elevated risk will not 
recur. To provide transparency, MSHA must publish the written 
finding that there are mitigating circumstances that would 
preclude placing the mine on pattern status within 10 days on 
the web site for MSHA and provide copies to the House Education 
and Labor Committee and Senate HELP Committee.
    Once a mine is placed in pattern status, MSHA is required 
to:
          (1) Notify the mine operator that it must withdraw 
        all miners from the mine; and
          (2) Issue a remediation order tailored to conditions 
        at the particular mine within 3 days.
    The remediation order may require additional training, an 
effective health and safety management program, the employment 
of safety professionals, certified persons or adequate number 
of personnel to implement the remediation plan, increased 
reporting, and a timetable for completion. MSHA is authorized 
to communicate with miners (outside the presence of operators) 
about conditions in the mine, and also to advise them of their 
rights under the Act. MSHA may reinstate a withdrawal order if 
an operator fails to comply with the remediation order while in 
pattern status. MSHA can modify the remediation order or extend 
deadlines, but only on a showing by the operator that the 
operator took all measures to comply with the order and only if 
it was prevented from doing so by factors outside its control.
    The mine-wide withdrawal order is lifted when the Secretary 
verifies that all violations or conditions have been or are 
being fully corrected as outlined in the remediation order (or 
if other plans or orders have unfulfilled requirements) and the 
operator has completed specific requirements in the remedial 
order that are prerequisites for reopening the mine.
    Once in pattern status, the mine is on probation for at 
least 1 year, during which the mine is subject to double the 
number of regular inspections: For underground mines that means 
8 regular inspections per year instead of 4. MSHA will assess 
and collect fees from each mine in pattern status for the cost 
of these additional inspections. MSHA will issue a fee schedule 
through a rule within 120 days of enactment.
    Once a mine is on pattern status, MSHA will review a mine's 
performance every 90 days to determine whether it has met 
``performance benchmarks.'' Within 90 days, a mine must improve 
to the point that it has during the previous 90-day period:
           Reduced the rate of citations for S&S; 
        violations by 70% (provided that the rate is not 
        greater than the mean for mines of similar size and 
        type), or
           The mine has reduced its rate of S&S; 
        violations so that it is in the top performing 35th 
        percentile for all mines of similar size and type.
           Reduced the rate of accidents and injuries 
        so that it is in the top performing 35th percentile for 
        mines of similar size and type, and
           Has been issued no withdrawal orders, 
        imminent danger orders, or citations for flagrant 
        violations during this period.
    If a mine fails to meet these benchmarks within any 90-day 
period, the Secretary may issue another withdrawal order to 
remedy conditions that led to pattern status, and may modify 
the remediation order. Section 301(b) provides that, if after 
180 days on pattern status, the mine fails to meet these 
benchmarks, penalties for violations shall be doubled.
    A mine can be removed from pattern status if, for a 1-year 
period:
           The mine reduced the rate of citations for 
        S&S; violations by 80% (provided that the rate is not 
        greater than the mean for mines of similar size and 
        type), or
           Reduced its rate of S&S; violations so that 
        it is in the top performing 25th percentile for all 
        mines of similar size and type.
           The mine's rate of accidents and injuries 
        are in the top performing 25th percentile for all mines 
        of similar size and type, and
           The mine has been issued no withdrawal 
        orders, imminent danger orders, or citations for 
        flagrant violations during this period.
    If a mine operator fails to meet these performance 
benchmarks, MSHA must extend the mine's placement in pattern 
status until the benchmarks are achieved for a 1-year period. 
If a withdrawal order was issued as a result of factors 
entirely beyond the operator's ability to prevent or control 
(such as seal leakage due to rapid change in barometric 
pressure), and no citation was issued in connection with such 
withdrawal order, such withdrawal order shall not be counted as 
a disqualifying factor for purposes of removing an operator 
from pattern status.
    Mine operators can obtain an expedited review by the 
Federal Mine Safety and Health Review Commission (Review 
Commission). MSHA must establish and maintain a publically 
available, easily searchable electronic database with the 
information the Secretary uses to establish pattern status and 
make publically available mines placed in pattern status within 
7 days of such placement, and provide guidance to assist 
operators and the public in assessing each mine's performance 
relative to criteria set forth in regulations.
    Sec. 203.--Injunctive Authority. Provides the Secretary of 
Labor with the authority to seek an injunction to close a mine 
for a ``course of conduct'' which, in the judgment of the 
Secretary, constitutes a continuing hazard to the health and 
safety of miners, including violations of the law or health and 
safety standards or regulations. Course of conduct means a 
pattern of conduct composed of 2 or more acts.
    Sec. 204.--Revocation of Approval of Plans. Authorizes the 
Secretary to revoke a plan which is based upon inaccurate 
information or that circumstances have materially changed from 
the time that the plan was approved and continued operation 
under such plan constitutes a hazard to miners. The Secretary 
is authorized to issue a withdrawal order upon such revocation, 
until the operator has submitted and the Secretary has approved 
a new plan.
    Sec. 205.--Challenging a Decision to Approve, Modify, or 
Revoke a Coal or other Mine Plan. Codifies an ``arbitrary and 
capricious'' standard of review for the Review Commission or 
courts to decide appeals regarding the Secretary's decision to 
approve, modify, or revoke a mine plan.
    Sec. 206.--GAO Study on MSHA Mine Plan Approval. Directs 
the Government Accountability Office to assess factors that 
contribute to delays in MSHA's approval of required plans for 
underground coal mines, and to make recommendations for 
improving timeliness of plan review and for achieving prompt 
decisions.

                          TITLE III--PENALTIES

    Sec. 301.--Civil Penalties. Operators in pattern status 
will be assessed double penalties for any violations, if the 
mine fails to improve enough to meet performance benchmarks 
after 180 days in pattern status. Fines may not exceed the 
maximum statutory penalty.
    Operators who violate the anti-retaliation provisions in 
Section 105(c) the Mine Act shall be assessed a civil penalty 
of between $10,000 and $100,000 for the first violation, and 
between $20,000 and $200,000 for repeat offenses within a 3-
year period. This penalty is in addition to remedies afforded 
to miners or employees under Section 105(c).
    Sec. 302.--Civil and Criminal Liability of Officers, 
Directors and Agents. Clarifies that Section 110(c) of the Mine 
Act extends the civil and criminal liability of directors, 
officers, or agents to all types of operators regardless of the 
legal form of business organization. To eliminate ambiguity, 
the legislation replaces the term ``corporate operator'' with 
the term ``operator'' to ensure that all types of operators are 
covered without regard to form of their business organization. 
This change will eliminate any question that limited liability 
corporations, partnerships and other forms of business 
organization are covered operators. Actions covered in this 
section are expanded to cover any officer or director who 
knowingly authorizes or carries out a policy or practice that 
resulted in a violation of a standard or failure or refusal to 
comply with an order.
    Sec. 303.--Criminal Penalties. For violations of mandatory 
health and safety standards, the intent standard for criminal 
conduct in Section 110(d) of the Mine Act is changed from a 
``willful'' to a ``knowing'' violation. ``Knowing'' remains the 
criminal standard for an operator who violates, fails to or 
refuses to comply with an order.
    The Mine Act's current criminal misdemeanor is retained for 
an operator who knowingly violates a mandatory health and 
safety standard, or violates or fails or refuses to comply with 
any order. Unchanged is the current fine of not more than 
$250,000 for the first instance, or 1 year in prison, or both. 
For a subsequent knowing violation of the same mandatory health 
and safety standard or order, the fine for a conviction is 
increased from $500,000 to $1,000,000, and but the legislation 
retains the existing felony provisions of up to 5 years 
imprisonment, or both.
    New felony provisions are established for instances where 
the operator knowingly violates a mandatory health and safety 
standard or violates, or fails or refuses to comply with an 
order, and knowingly exposed miners to a significant risk of 
serious injury or illness or death. In the first instance, such 
violation is punishable. For a subsequent conviction of the 
same violation, punishment shall be by a fine of not more than 
$2,000,000, or by imprisonment for not more than 10 years, or 
both. An additional category of felony is added if an operator 
knowingly tampers with or disables a required safety device 
which exposes miners to a significant risk of serious injury or 
illness or death, punishment shall be by a fine of not more 
than $2,000,000, or by imprisonment for not more than 10 years, 
or both.
    Retaliation.--Authorizes criminal penalties against any 
person who engages in retaliation that is directly or 
indirectly harmful to any person, including action that 
interferes with lawful employment or livelihood of any person, 
because that person has provided any information related to a 
violation of mine safety and health violations or an 
unhealthful or unsafe condition, policy or practice under the 
Mine Act to MSHA, a federal law enforcement officer or a state 
mine safety agency. The penalties include a fine of up to 
$250,000 for an individual and up to 10 years imprisonment, or 
both, and up to $500,000 for an organization.
    Advance Notice of Inspection.--Authorizes criminal 
penalties for any person who knowingly gives, causes to give, 
or attempts to give or cause to give, advance notice of any 
inspection with the intent to impede, interfere with, or 
adversely affect the results of any inspection. Penalties are 
increased from a misdemeanor to a felony with 5 years/maximum 
or $250,000 for an individual, and $500,000 for an 
organization. Requires operators to post a notice, in a form 
and manner to be prescribed by the Secretary, stating that such 
advance notice is unlawful and sets forth maximum penalties for 
a violation.
    Sec. 304.--Commission Review of Penalty Assessments. 
Requires the Review Commission to assess penalties using the 
same methodology used by MSHA to calculate proposed fines, 
however, the Review Commission can use the statutory penalty 
criteria when there are extraordinary circumstances, or the 
type of penalty is not based on an MSHA regulation in place 
(currently regulations do not specify a methodology for special 
assessment). Currently, MSHA uses a formal system of points to 
calculate penalty amounts based on statutory factors. 
Currently, Review Commission and its administrative law judges 
can apply their own discretion using statutory criteria under 
Section 110(i) of the Mine Act, but are not bound to use MSHA's 
penalty formula.
    Sec. 305.--Delinquent Payments and Prejudgment Interest. 
Provides for prejudgment interest on contested fines and 
penalties based on IRS interest rates. Operators who fail to 
pay finally-adjudicated penalties within 180 days face a 
withdrawal order until they pay their overdue fines or make 
timely payments on a payment plan.

                TITLE IV--WORKER RIGHTS AND PROTECTIONS

    Sec. 401.--Protection from Retaliation. If the nation's 
mine safety and health program is to be truly effective, miners 
will have to play an active part in the enforcement of the Act. 
If miners are to be encouraged to be active in matters of 
safety and health, they must be protected against any possible 
discrimination which they might suffer as a result of their 
participation. This provision strengthens anti-retaliation 
provisions in Section 105(c) of the Mine Act by prohibiting any 
person from discharging or taking adverse action against a 
miner, other employee, or applicant for employment because that 
person has (1) complained about any unsafe condition in a mine; 
(2) instituted any proceeding related to this Act, or testified 
or is about to testify in any such proceeding, or exercised any 
right provided by this Act; (3) testified or is about to 
testify to Congress or any federal or state proceeding related 
to safety or health in a mine, or has reported an injury or 
illness to an operator or agent; (4) refused to violate any 
provision of this Act (including a mandatory health and safety 
standard, a regulation, an order or a plan); or (5) such miner 
is the subject to a medical evaluation and potential transfer. 
In addition, a miner or other employee cannot be retaliated 
against for refusing to work if the employee has a ``good-faith 
and reasonable belief'' that performing his duties would pose a 
safety or health hazard to himself or any other miner or 
employer.\153\
---------------------------------------------------------------------------
    \153\Good faith belief means honest belief that a hazard exists. 
The purpose of this requirement to remove the Act's protection work 
refusals involving fraud or other forms of deception [such as] lying 
about the existence of an alleged hazard, deliberately causing one or 
otherwise acting in bad faith. See: Secretary of Labor on behalf of 
Robinette v United Castle Coal Co. The belief must be based on what a 
``reasonable person'' would conclude confronted with the same 
circumstances. The miner or other employee, when practicable, is 
required to communicate or attempt to communicate the concern to the 
operator and have not received a response that allays the concern.
---------------------------------------------------------------------------
    This section extends the statute of limitations for filing 
a complaint from 60 to 180 days. Within 15 days of receipt of a 
complaint, the Secretary is required to begin an investigation 
and make a determination whether or not the complaint was 
frivolously brought. Under current law, if the Secretary finds 
the complaint was not frivolously brought, she shall, on an 
expedited basis, apply to the Review Commission or an order of 
immediate reinstatement of the miner. The Secretary must 
complete the investigation, and if she finds retaliation, must 
immediately file a complaint with the Review Commission along 
with a proposed order for permanent relief. If the Secretary 
finds that a violation has not occurred, the miner (or 
applicant) has the option of filing a complaint with the Review 
Commission. A complainant alleging discrimination has the 
burden of proving that protected activity was a ``contributing 
factor'' to the adverse action. The employer can overcome this 
by demonstrating by clear and convincing evidence that the 
employer would have taken the same adverse action in the 
absence of such conduct.
    Under this section, the Review Commission's existing 
authority to order make whole remedies is expanded to provide 
for exemplary damages. This legislation does not alter Review 
Commission precedent in Moses v Whitley Development 
Corporation, 4 FMSHRC 1475 (1982), that adverse action taken 
against a miner because of the mistaken suspicion or belief 
that the miner had engaged in protected activity nonetheless 
violates Section 105(c) of the Mine Act.
    Sec. 402--Protection from Loss of Pay. Retains the existing 
provision of Section 111 of the Mine Act which provides 
payments to miners who are idled due to an MSHA withdrawal 
order for the balance of their shift and for 4 hours on the 
next working shift, including orders issued under Sections 103, 
104, 107, 108, or 110 of the Mine Act. However, after the 2nd 
working shift, the operator shall pay miners their full pay who 
are idled for up to 60 days, provided that miners are idled due 
to an order issued under Sections 104, 107 (in connection with 
a citation), 108 or 110. Payments shall be made regardless of 
the result of any review of such order. This section authorizes 
payments to miners who are idled for up to 60 days when the 
operator closes the mine in anticipation of an MSHA withdrawal 
order, except in those circumstances when the operator promptly 
withdraws miners due to a hazard and notifies MSHA, if 
required, within the prescribed time period. This is intended 
to ensure that mine operators, who try to game the system by 
keeping miners exposed to a hazard until just before MSHA 
issues a withdrawal order will have to pay miners who are 
idled. However, if a mine operator promptly withdraws miners 
rather than continue to expose them to a hazard, and notifies 
MSHA where required, and MSHA subsequently issues an order, the 
mine operator will not be liable for the pay of idled miners. 
The section provides for an expedited proceeding and decision 
before the Review Commission using the same time frames as are 
provided for the review of emergency response plans. If a miner 
or other employee is not paid, current law provides that he can 
file a complaint with the Review Commission which can order 
payment, and authorizes reasonable attorney fees and costs to a 
miner who prevails in whole or in part. Further, this section 
authorizes the Secretary to close a mine which fails to pay its 
miners by the next regular payroll period.
    Sec. 403--Underground Coal Miner Employment Standard for 
Mines Placed in Pattern Status. For three years after an 
underground coal mine is placed on pattern status, hourly 
workers at an underground coal mine cannot be discharged except 
for ``good cause,'' which is defined as ``failure to 
satisfactorily perform job duties, including compliance with 
this Act . . . or other legitimate business reason,'' following 
an employee's probationary period not to exceed 6 months. A 
miner who is discharged without good cause has a private right 
of action to federal district court within 1 year. If the miner 
prevails, a court can take action to further the purposes of 
this Act, including ordering reinstatement with back pay and 
compensatory damage, and shall award reasonable attorney's fees 
and costs to a prevailing miner.

            TITLE V--MODERNIZING HEALTH AND SAFETY STANDARDS

    Sec. 501.--Pre-shift Review of Mine Conditions. Requires 
implementation of a communication program to ensure that each 
miner is made aware of the current conditions of the mine at 
the start of his shift. This is accomplished by requiring oral 
communication between incoming and outgoing miners and shall 
include a description of both general conditions and any 
specific hazardous conditions or health and safety violations 
identified where the miner will be working or traveling. The 
intent of this section is for the content of these 
communications to be recorded in a log.
    Sec. 502.--Rock Dust Standards. Increases the percentage 
from 65% to 80% of the amount of rock dust that needs to be 
mixed with coal dust in all working areas of underground 
bituminous coal mines in order to prevent coal dust explosions. 
Currently 80% incombustible content is required in the return 
entries, but only 65% is required for intakes and neutral areas 
of the mine. This standard was based on research conducted in 
the 1920s. However, with the advent of modern mining machinery, 
coal dust is much finer today and this fine float dust presents 
a greater explosive risk. NIOSH has conducted experiments on 
coal dust from every region of the country and recommended that 
the law be changed to require 80% total incombustible content 
in all entries and returns and neutral areas.
    This section also requires operators to take accurate 
samples of dust in active working areas of coal mines to ensure 
that dust is kept below explosive levels. Sampling will have to 
be done using direct reading monitors once the Secretary of 
Health and Human Services (HHS) HHS has certified that they are 
commercially available and MSHA has approved them as 
permissible for use in an underground mine. Currently, samples 
have to be sent to a lab and results can take 2 weeks.
    Section 502 requires the Secretary of Labor and the 
Secretary of HHS to submit a report to the House and Senate 
labor committees within 2 years of enactment on whether direct 
reading devices are sufficiently reliable and accurate to be 
used for enforcement of the rock dust standard. If the report 
determines that direct reading devices are sufficiently 
reliable and accurate, the Secretary must promulgate a final 
rule authorizing the use of direct reading devices for 
enforcement purposes. However, measurements taken by operators 
or MSHA using the direct reading devices cannot be used in 
enforcement actions under this Act, until after such final rule 
is promulgated.
    Sec. 503--Atmospheric Monitoring Systems. Requires NIOSH to 
issue recommendations within 1 year about how atmospheric 
monitoring systems could be used in underground coal mines to 
improve safety. NIOSH is urged to consult with a technical 
working group, and work in partnership with operators, vendors, 
state mine safety agencies and labor on opportunities to 
install continuous atmospheric monitoring to detect methane, CO 
and air flow. Following such report, DOL is required to 
promulgate regulations within 1 year requiring operators to 
install such systems consistent with NIOSH's recommendations.
    Sec. 504--Technology Related to Respirable Dust. Requires 
DOL to promulgate regulations requiring operators to use 
environmental controls to give miners the maximum feasible 
protection from respirable dust, including coal and silica 
dust.
    Sec. 505--Refresher Training on Miner Rights and 
Responsibilities. Requires operators to provide miners with 9 
hours of training every 12 months, including one hour of 
training on their statutory rights and responsibilities. 
Currently the Mine Act only requires instruction in statutory 
rights and responsibilities for new miners, and there is no 
refresher training requirement. Training on miners' rights and 
responsibilities must be conducted by MSHA or an MSHA-approved 
trainer independent from the operator, to ensure miners receive 
an unbiased explanation of their rights. Requires that MSHA 
mandated safety training program must include distribution of 
information to miners regarding miners' rights under the Act, 
and a toll free hotline telephone number at MSHA to be used for 
reporting unsafe conditions or retaliation. Durable wallet 
cards with the toll free hotline number shall also be 
distributed.
    Sec. 506.--Authority to Mandate Additional Training. Gives 
the Secretary authority to require an operator to provide 
additional training beyond what is normally required if the 
mine has experienced a fatal accident or has injury, accident, 
S&S; citation, or withdrawal order rates that are above the 
average for mines of similar size and type.
    Sec. 507.--Certification of Personnel. Sets minimum 
requirements for states to certify, recertify, and decertify 
certain mine personnel. If a state does not meet the minimum 
standards for such procedures or cover certain mine 
classifications (e.g., mine superintendents), MSHA's 
certification processes will apply in that state. Many states 
do not have laws covering mandating recertification; others 
lack decertification procedures. The Secretary is authorized to 
assess and collect a fee from operators to cover the costs for 
testing and certification of a miner. MSHA must establish a 
database of individuals whose certification, registration or 
qualification has been revoked, and to make such information 
accessible to states. Section 104 of this legislation 
(additional amendments relating to inspections and 
investigations) requires that knowingly falsifying a report 
under Section 103 of the Mine Act related to accidents, 
injuries, illnesses and man-hours worked is grounds for 
revoking a certification under this section.

              TITLE VI--ADDITIONAL MINE SAFETY PROVISIONS

    Sec. 601.--Definitions. Expands the definition of the term 
``operator'' to include those who directly or indirectly 
``control'' management decisions which impact health and safety 
at a mine. This expanded definition will subject entities who 
do not directly ``operate'' a mine, but have control over 
managerial decisions, to be subject to civil and criminal 
enforcement.
    Sec. 602--Assistance to States. Expands MSHA's state grant 
program to allow grants for upgrading states' miner 
certification programs to meet the new requirements established 
in this Act. Increases state grant program authorization from 
$10 million to $20 million annually.
    Sec. 603.--Black Lung Medical Reports. Requires operators 
to provide claimants who are required by the mine operator to 
submit to a medical examination in connection with a claim 
under the Black Lung Program with a complete copy of the 
examining physician's report within 14 days, without the need 
for the claimant to request the report.
    Sec. 604.--Rules of Application to Certain Mines. Section 
604 limits the applicability of titles I through VI to all 
underground coal mines as well as other underground mines which 
are ``gassy'' (including surface mines physically connected to 
such mines) Gassy mines emit methane or other flammable gases 
and can catch fire or explode. Examples include gilsonite mines 
in Utah, trona ore mines in Wyoming, and salt mines in salt 
domes in Louisiana The Belle Isle Salt mine in Franklin, 
Louisiana caught fire in 1968, killing 21 workers underground. 
In June 2010, the Weeks Island salt mine was evacuated due to a 
fire.
    ``Surface facilities . . . physically connected'' to an 
underground mine, include surface facilities physically 
connected by conveyor belt, and is intended to include surface 
lands, shafts, slopes, structures, equipment, coal preparation 
and loading facilities, impoundments, retention dams, and 
tailings ponds on the surface that are related to mineral 
extraction, and private roads and ways so connected. The 
application of this section should be applied based on physical 
connection, and without regards to whether a surface facility 
connected to an underground mine has a different MSHA mine 
identification number from the underground mine.
    Surface metal/non metal mines and non-gassy underground 
metal/non metal mines are exempted from the changes made to the 
Mine Act by the Robert C. Byrd Miner Safety and Health Act of 
2010, including stone, sand and gravel mines, limestone mines, 
cement mines and surface coal mines and coal processing 
facilities (except for those surface facilities physically 
connected to an otherwise covered underground mine). The 
existing provisions of the Mine Act will continue to apply to 
these surface and subsurface non-gassy mines. Nothing is 
intended to impact the authority of the Secretary to promulgate 
or modify regulations pursuant to her authority under the Mine 
Act as in effect prior to the enactment of the Robert C. Byrd 
Miner Safety and Health Act of 2010 with respect to surface and 
non gassy underground mines, nor should this section be 
construed to alter or modify any precedent with regards to the 
Review Commission or courts.

    TITLE VII--AMENDMENTS TO THE OCCUPATIONAL SAFETY AND HEALTH ACT

    Sec. 701--Enhanced Protections from Retaliation. Employee's 
protected activity is expanded under the anti-retaliation 
provisions contained in Section 11(c) of the OSH Act to cover: 
an employee's refusal to perform work he/she reasonably 
believes would result in serious injury or illness or to 
violate the Act; an employee's reporting of injuries, 
illnesses, or unsafe conditions; and an employee testifying 
before Congress.
    This section extends the statute of limitations from 30 to 
180 days. OSHA must order preliminary reinstatement to 
individuals where OSHA has found reasonable grounds that the 
claimant was discriminated against. Where DOL declines to 
investigate, employees can request a de novo hearing before an 
Administrative Law Judge (ALJ).
    A complainant alleging discrimination has the burden of 
proving that protected activity was a ``contributing factor'' 
to the adverse action. The employer can overcome this by 
demonstrating by clear and convincing evidence that the 
employer would have taken the same adverse action in the 
absence of such conduct. When an ALJ finds a violation of the 
law, she can order reinstatement, preservation of seniority, 
back pay with interest, exemplary damages (as appropriate), 
attorney's fees, and expungement of adverse information in the 
employee's record. Claimants or respondents can seek 
administrative appeal within the DOL within 30 days of receipt 
of an ALJ decision. Such appeal shall be decided in 90 days. 
Judicial review is provided in the Court of Appeals. The 
employer's history of violating OSHA's anti retaliation 
provisions will be a factor considered by the Occupational 
Safety and Health Review Commission when assessing penalties.
    If the Labor Department does not investigate, adjudicate, 
hear appeals and decide the claim in a timely manner (330 
days), the claimant is allowed to ``kick out'' and file suit in 
federal district court for a de novo review of the matter. 
Claimants employed by employers in OSHA state-plans, can elect 
to file their claim with the state OSHA or with federal OSHA, 
if a claim is filed with federal OSHA, federal OSHA must 
investigate and adjudicate the claim, and may not send the 
claim back to the state to have it investigated or adjudicated.
    Sec. 702.--Victims' Rights. OSHA must inform family members 
of workers killed (or incapacitated from a job related injury) 
or victims about OSHA's investigation before final decisions 
are made about whether to issue any citations. Victims include 
workers who suffered an injury which is the subject of an OSHA 
inspection or investigation.
    OSHA must provide a copy of any citations or reports 
related to the investigation to families or victims at the same 
time the employer receives them. OSHA is required to notify 
families or victims about formal or informal settlements and 
provide families or victims with an opportunity to meet with 
OSHA or submit statements prior to reaching any agreement. OSHA 
must establish a family liaison in each area office to keep 
families and victims informed and assist them in asserting 
their rights.
    Families and victims must be notified of employer contests; 
notified of time and date of any proceeding before the OSHA 
Review Commission; be provided copies of all pleadings and 
decisions; and be provided an opportunity to appear and make a 
statement before the Commission. The Commission must provide 
due consideration to statements and information provided by 
families.
    Sec. 703.--Correction of Serious, Willful or Repeated 
Violations Pending Contest and Procedures for a Stay. Requires 
employers to correct serious, willful, and repeat violations 
while they are contesting citations for OSHA violations. The 
OSHA Act allows employers to postpone abatement while they 
litigate, which puts workers in harm's way. This forces OSHA to 
eliminate penalties or downgrade citations in order to secure 
correction of the violation.
    Provides employers with the right to seek a temporary stay 
of OSHA's abatement order through an expedited proceeding 
before an Occupational Safety and Health Review Commission 
(OSHRC) ALJ while the merits of the citation are litigated. To 
obtain a stay, the employer must show it is likely to succeed 
in challenging the underlying the merits of the citation or in 
challenging the length of the abatement period, and a stay will 
not harm the health and safety of workers. Unions can intervene 
as a party. Decisions on a request for a stay must be rendered 
within 30 days. Any party can appeal to the full OSHRC, and if 
the OSHRC declines to act, or act in a timely manner, parties 
can appeal to the Court of Appeals.
    Sec. 704.--Conforming Amendment. Allows DOL to assess a 
civil penalty up to $7,000 for each day an employer fails to 
correct or abate a serious, willful, or repeat violation by the 
date established by DOL for correction, unless the OSHRC has 
issued a stay.
    Sec. 705.--Civil Penalties. OSHA's civil penalties have not 
been adjusted for inflation since 1990, due to an exemption in 
the Federal Civil Penalties Inflation Adjustment Act. Section 
705 increases civil penalties to account for inflation, and 
establishes higher penalties when workers are killed due a 
willful or serious violation. A reduced penalty is established 
for small businesses where workers are killed due to a willful 
or serious violation. OSHA must adjust civil penalties for 
inflation at least once every 4 years, beginning January 1, 
2015 (see Chart #1).

                                          CHART 1--OSHA CIVIL PENALTIES
----------------------------------------------------------------------------------------------------------------
                                                                 OSHA Current civil       Proposed increase in
                                                                       penalty            civil penalty In H.R.
                    Category of violation                    --------------------------           5663
                                                                                       -------------------------
                                                                Minimum      Maximum      Minimum      Maximum
----------------------------------------------------------------------------------------------------------------
Willful or Repeated.........................................       $5,000      $70,000       $8,000     $120,000
----------------------------------------------------------------------------------------------------------------
Willful of Repeated, resulting in a fatality................         Not in law            $50,000a     $250,000
----------------------------------------------------------------------------------------------------------------
Serious.....................................................           $0       $7,000           $0      $12,000
----------------------------------------------------------------------------------------------------------------
Serious, resulting in a fatality............................         Not in law            $20,000a      $50,000
----------------------------------------------------------------------------------------------------------------
Other than serious..........................................           $0       $7,000           $0      $12,000
----------------------------------------------------------------------------------------------------------------
Failure to correct (abate) a safety or health hazard........           $0   $7,000/day           $0  $12,000/day
----------------------------------------------------------------------------------------------------------------
Failure to post.............................................           $0       $7,000           $0     $12,000
----------------------------------------------------------------------------------------------------------------
\a\This minimum is reduced by half for employers of 25 or fewer employees.

    When assessing penalties for repeat violation, Section 705 
also authorizes OSHA and the Review Commission to consider the 
history of similar violations in state-plan states as well as 
federal OSHA states. Currently, federal OSHA must overlook 
violations in 21 different states when assessing an employer's 
past history with respect to repeat violations.
    Consistent with the objective of addressing repeat 
violations across multi-establishment employers, the Committee 
urges the Secretary, when bringing enforcement actions against 
multi-establishment employers to assess whether there is a 
potential for the same or similar violations to be repeated at 
the employer's other establishments. As part of such 
assessment, the Secretary should use its authority under the 
Act to obtain data on injury and illnesses across all similar 
establishments. For employers receiving a ``high-severity'' 
violation from OSHA as part of OSHA's Severe Violator 
Enforcement Program, the Secretary should consistently evaluate 
all of the employer's similar establishments to determine 
whether the violation exists at such establishments and certify 
to OSHA that the hazards were abated or that the violation does 
not exist at any comparable establishment. This policy can and 
should be achieved through improvements to the Field Operations 
Manual.
    Sec. 706.--Criminal Penalties. Section 706 increases the 
criminal penalty and modifies the intent standard for a 
violation that causes a worker's death. Penalties are increased 
from a misdemeanor to a felony (see Chart #2). Under this 
section, knowing violations which cause or contribute to the 
death of a worker are designated as felonies with a maximum 
fine of $250,000 for individuals and $500,000 for 
organizations, or a 10-year prison term, or both. Knowing 
violations which cause ``serious bodily harm'' are subject to 
maximum fine of $250,000 for individuals and $500,000 for 
organizations or a 5-year prison term, or both. Serious bodily 
harm is defined as an injury or illness that involves a 
substantial risk of death, protracted unconsciousness, obvious 
physical disfigurement, or loss or impairment (either permanent 
or temporary) of the function of a bodily member, organ or 
mental facility.'' While corporations and sole proprietors are 
liable under the OSHA Act, officers and directors of 
corporations are immune from criminal liability. Section 706 
adds officers and directors as parties who can be prosecuted 
for criminal violations.
    Section 706 also updates the OSH Act with regards to 
unauthorized advance notice of inspections. Strict liability 
provision in existing law is replaced with a requirement that a 
person must knowingly provide advance notice with the intent to 
impede, interfere with or adversely affect the result of an 
inspection. Current law provides that advance notice of 
inspections by any person is a misdemeanor. Penalties are 
increased from a misdemeanor to a felony with 5 years/maximum 
or $250,000 for an individual, and $500,000 for an 
organization.
    Nothing preempts state or local law enforcement agencies 
from conducting criminal prosecutions in accordance with state 
or local laws.

                    CHART 2--OSHA CRIMINAL PENALTIES
------------------------------------------------------------------------
                                    Current maximum      Criminal OSHA
      Category of violation          OSHA criminal      penalty in H.R.
                                        penalty              5663
------------------------------------------------------------------------
Knowing, resulting in a fatality  $10,000;            For an individual--
                                   misdemeanor with    $250,000; felony
                                   a 6 mo max prison   with a 10 yr max
                                   term.               prison term.
                                                      For an
                                                       organization--$50
                                                       0,000; felony.
------------------------------------------------------------------------
Knowing, repeat, resulting in a   $20,000;            For an individual--
 fatality.                         misdemeanor with    $250,000; felony
                                   a 1 yr max prison   with a 20 yr max
                                   term.               prison term.
                                                      For an
                                                       organization--$50
                                                       0,000; felony.
------------------------------------------------------------------------
Knowing, resulting in serious     Not in law........  For an individual--
 bodily harm.                                          $250,000; felony
                                                       with a 5 yr max
                                                       prison term.
                                                      For an
                                                       organization--$50
                                                       0,000; felony.
------------------------------------------------------------------------
Knowing, resulting in serious     Not in law........  For an individual--
 bodily harm.                                          $250,000; felony
                                                       with a 10 yr max
                                                       prison term.
                                                      For an
                                                       organization--$50
                                                       0,000; felony.
------------------------------------------------------------------------
Advance notice of inspection....  $1,000;             For an individual--
                                   misdemeanor with    $250,000; felony
                                   a 6 mo max prison   with a 5 yr max
                                   term.               prison term.
                                                      For an
                                                       organization--$50
                                                       0,000; felony.
------------------------------------------------------------------------
False statements                  $10,000;            For an individual--
                                   misdemeanor with    $250,000; felony
                                   a 6 mo max prison   with a 5 yr max
                                   term.               prison term.
                                                      For an
                                                       organization--$50
                                                       0,000; felony.
------------------------------------------------------------------------

    Sec. 707.--Pre-final Order Interest. Authorizes prejudgment 
interest from the date of contest to the date of final order at 
the rate charged by the IRS. Post judgment interest is already 
authorized, and this legislation sets an 8% interest rate, the 
same as the Mine Act.
    Sec. 708.--Review of State Occupational Safety and Health 
Plans. Authorizes the Secretary of Labor to assert concurrent 
enforcement authority over a state OSHA plan, if she determines 
that there is a failure by the state plan to comply 
substantially with any provision of a state plan. Such 
amendment provides states with an opportunity for a hearing 
regarding an initial determination by the Secretary, provided 
such request is made within 10 days of such initial 
determination. If the Secretary affirms such determination 
following a hearing, the Secretary may inspect and enforce OSHA 
standards or under the general duty clause. Requires GAO to 
conduct a study every 5 years to assess: whether a sample of 
state plans are at least as effective as federal OSHA, whether 
federal OSHA's oversight of state plans is effective, whether 
the Secretary is adequately investigating Complaints About 
State Plan Administration, and to whether the funding formula 
for state plans is fair and adequate.
    Sec. 709.--Health Hazard Evaluations by the National 
Institute for Occupational Safety and Health. Modifies Section 
20 of the Occupational Safety and Health Act of 1970 to expand 
the list of those individuals who can request that NIOSH 
conduct a Health Hazard Evaluation (HHE). This section 
authorizes representatives of former workers, physicians, 
another federal agency, or a state or local health department 
to request an HHE, in addition to employers and employee 
representatives who are already authorized to make such 
requests. It also expands the issues that can be covered in an 
HHE to go beyond toxic substances to include physical agents, 
equipment, or working conditions. Such expanded authority 
already exists for NIOSH to cover physical agents for miners.
    Sec. 710.--Authorization of Cooperative Agreements by the 
National Institute for Occupational Safety and Health. Amends 
Section 22(h)(3) of the Occupational Safety and Health Act of 
1970 to authorize the National Institute for Occupational 
Safety and Health through its Office of Mine Safety and Health 
to enter into cooperative agreements with international 
institutions to improve mine safety and health through new 
interventions.
    Sec. 711.--Effective Date. Title VII takes effect not more 
than 90 days after being enacted, with the exception of state-
plan states, which have 1 year from the date of its enactment 
to implement its requirements. In addition, DOL may extend the 
1-year period for up to 12 additional months if a state-plan 
state's legislature is not in session during the 12-month 
period after enactment.

                     VI. Explanation of Amendments

    The Committee adopted a substitute amendment to the bill. 
The substitute amendment is described in total in the summary 
of the bill above. The Committee adopted four other amendments 
to the substitute amendment: Amendment by Ms. Shea-Porter, 
Amendment by Ms. Woolsey, Amendment by Mr. Hare, and Amendment 
by Ms. Titus. These four amendments are described in the 
Legislative History section of this report.

           VII. Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1, the Congressional 
Accountability Act, requires a description of the application 
of this bill to the legislative branch. H.R. 5663 would have no 
impact on the legislative branch insofar as it amends the Mine 
Act. The Congressional Accountability Act applies the 
Occupational Safety and Health Act to the legislative branch.

                   VIII. Regulatory Impact Statement

    The Committee has determined that H.R. 5663 will have a 
minimal impact on the regulatory burden. In fact, H.R. 5663 
will reduce the Department of Labor's regulatory burden 
significantly by enacting into law or providing specific 
guidance on a number of matters that have been pending on its 
regulatory agenda for some time.

                     IX. Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates. This issue is addressed in the CBO letter.

                          X. Earmark Statement

    H.R. 5663 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI.


    XII. Statement of Oversight Findings and Recommendations of the 
                               Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the body of this report.

            XIII. New Budget Authority and CBO Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the House of Representatives and section 308(a) of the 
Congressional Budget Act of 1974 and with respect to 
requirements of 3(c)(3) of rule XIII of the House of 
Representatives and section 402 of the Congressional Budget Act 
of 1974, the Committee has received the following estimate for 
H.R. 5663 from the Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 26, 2010.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: Based on a review of H.R. 5663, the 
Robert C. Byrd Miner Safety and Health Act of 2010 as ordered 
reported on July 21, 2010, CBO estimates that enacting this 
legislation would not affect direct spending over the 2010-2020 
period. However, CBO estimates that the legislation would 
increase revenues by $200 million over the 2010-2020 period. 
CBO has not completed an estimate of the bill's impact on 
discretionary spending.
    H.R. 5663 would amend several sections of the Federal Mine 
Safety and Health Act of 1977 (FMSHA) and the Occupational 
Safety and Health Act of 1970 (OSHA). The bill would require 
certain mine operators to implement safety measures to protect 
mine workers, require mine operators to comply with new 
standards regarding employee rights, and require independent 
accident investigations for certain accidents. The bill would 
also enhance whistleblower protections and victims' rights 
under OSHA.
    H.R. 5663 would increase civil and criminal penalties for 
violations under both FMSHA and OSHA. Based on information from 
the Department of Labor, CBO estimates that $120 million would 
be generated from penalties collected under title III (relating 
to FMSHA) of the bill and $80 million would be generated from 
penalties collected under title VII (relating to OSHA). Because 
enacting H.R. 5663 would affect revenues, pay-as-you-go 
procedures would apply (see enclosed table).
    CBO has determined that the bill contains several private-
sector mandates and one intergovernmental mandate as defined in 
the Unfunded Mandates Reform Act (UMRA). Because of 
insufficient information about the incremental costs related to 
some of the mandates, CBO cannot determine whether the 
aggregate cost of those private-sector mandates would exceed 
the annual threshold established in UMRA ($141 million in 2010, 
adjusted annually for inflation). CBO estimates that the total 
cost of the intergovernmental mandate would be small and would 
not exceed the annual threshold established for state, local, 
and tribal entities ($70 million in 2010, adjusted annually for 
inflation).
    I hope this information is helpful to you. If you would 
like further details on this estimate, the CBO contacts are 
Grant Driessen, Sean Dunbar, and Andrea Noda.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                          Director.
    Enclosure.

 CBO ESTIMATE OF PAY-AS-YOU-GO EFFECTS FOR H.R. 5663, THE ROBERT C. BYRD MINER SAFETY AND HEALTH ACT OF 2010, AS ORDERED REPORTED BY THE HOUSE COMMITTEE
                                                         ON EDUCATION AND LABOR ON JULY 21, 2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         By fiscal year, in millions of dollars--
                                ------------------------------------------------------------------------------------------------------------------------
                                   2010     2011     2012     2013     2014     2015     2016     2017     2018     2019     2020   2010-2015  2010-2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       NET INCREASE OR DECREASE (-) IN THE DEFICIT

Statutory Pay-As-You-Go Impact.        0      -20      -20      -20      -20      -20      -20      -20      -20      -20      -20      -100       -200
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Congressional Budget Office.

       XIV. Statement of General Performance Goals and Objectives

    In accordance with clause 3(c) of House rule XIII, the goal 
of H.R. 5663 is to improve the protection of miners in some of 
the nation's most dangerous working environments and other 
workers from occupational safety and health hazards.

                 XV. Constitutional Authority Statement

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress in the 
Constitution to enact the law proposed by H.R. 5663. The 
Committee believes that the amendments made by this bill, which 
amends the Federal Mine Safety and Health Act to provide 
increased protection to miners and other workers from 
occupational safety and health hazards, are within Congress' 
authority under Article I, section 8, clause 3 of the 
Constitution of the United States.

                        XVI. Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 5663. 
However, clause 3(d)(3)(B) of that rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act.

      XVII. Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

FEDERAL MINE SAFETY AND HEALTH ACT OF 1977

           *       *       *       *       *       *       *


                              DEFINITIONS

  Sec. 3. For the purpose of this Act, the term--
          (a) * * *

           *       *       *       *       *       *       *

          [(d) ``operator'' means any owner, lessee, or other 
        person who operates, controls, or supervises a coal or 
        other mine or any independent contractor performing 
        services or construction at such mine;]
          (d) ``operator'' means--
                  (1) any owner, lessee, or other person that--
                          (A) operates or supervises a coal or 
                        other mine; or
                          (B) controls such mine by making or 
                        having the authority to make management 
                        or operational decisions that affect, 
                        directly or indirectly, the health or 
                        safety at such mine; or
                  (2) any independent contractor performing 
                services or construction at such mine;
          (e) ``agent'' means any person charged with 
        responsibility for the operation of all or a part of a 
        coal or other mine or the supervision of [the miners] 
        any miner in a coal or other mine;

           *       *       *       *       *       *       *

          (g) ``miner'' means any individual working in a coal 
        or other mine, and includes any individual who is not 
        currently working in a coal or other mine but would be 
        currently working in such mine, but for an accident in 
        such mine;

           *       *       *       *       *       *       *

          (m) ``Panel'' means the Interim Compliance Panel 
        established by this Act; [and]
          (n) ``Administration'' means the Mine Safety and 
        Health Administration in the Department of Labor [.];
          (o) ``Commission'' means the Federal Mine Safety and 
        Health Review Commission [.]; and
          (p) ``significant and substantial violation'' means a 
        violation of this Act, including any mandatory health 
        or safety standard or regulation promulgated under this 
        Act, that is of such nature as could significantly and 
        substantially contribute to the cause and effect of a 
        coal or other mine safety or health hazard as described 
        in section 104(d).

           *       *       *       *       *       *       *


TITLE I--GENERAL

           *       *       *       *       *       *       *


             INSPECTIONS, INVESTIGATIONS, AND RECORDKEEPING

  Sec. 103. (a) Authorized representatives of the Secretary or 
the Secretary of Health, Education, and Welfare shall make 
frequent inspections and investigations in coal or other mines 
each year for the purpose of (1) obtaining, utilizing, and 
disseminating information relating to health and safety 
conditions, the causes of accidents, and the causes of diseases 
and physical impairments originating in such mines, (2) 
gathering information with respect to mandatory health or 
safety standards, (3) determining whether an imminent danger 
exists, and (4) determining whether there is compliance with 
the mandatory health or safety standards or with any citation, 
order, or decision issued under this title or other 
requirements of this Act. In carrying out the requirements of 
this subsection, no advance notice of an inspection shall be 
provided to any person, except that in carrying out the 
requirements of clauses (1) and (2) of this subsection, the 
Secretary of Health, Education, and Welfare may give advance 
notice of inspections. In carrying out the requirements of 
clauses (3) and (4) of this subsection, the Secretary shall 
make inspections of each underground coal or other mine in its 
entirety at least four times a year, and of each surface coal 
or other mine in its entirety at least two times a year. Such 
inspections shall be conducted during the various shifts and 
days of the week during which miners are normally present in 
the mine to ensure that the protections of this Act are 
afforded to all miners working all shifts. The Secretary shall 
develop guidelines for additional inspections of mines based on 
criteria including, but not limited to, the hazards found in 
mines subject to this Act, and his experience under this Act 
and other health and safety laws. The Secretary shall, upon 
request by an operator, review with the appropriate mine 
officials the Secretary's most recent evaluation for pattern 
status (as provided in section 104(e)) for that mine during the 
course of a mine's regular quarterly inspection of an 
underground mine or a biannual inspection of a surface mine, 
or, at the discretion of the Secretary, during the pre-
inspection conference. For the purpose of making any inspection 
or investigation under this Act, the Secretary, or the 
Secretary of Health, Education, and Welfare, with respect to 
fulfilling his responsibilities under this Act, or any 
authorized representative of the Secretary or the Secretary of 
Health, Education, and Welfare, shall have a right of entry to, 
upon, or through any coal or other mine. During inspections and 
investigations under this section, and during any litigation 
under this Act, no attorney shall represent or purport to 
represent both the operator of a coal or other mine and any 
other individual, unless such individual has knowingly and 
voluntarily waived all actual and reasonably foreseeable 
conflicts of interest resulting from such representation. The 
Secretary is authorized to take such actions as the Secretary 
considers appropriate to ascertain whether such individual has 
knowingly and voluntarily waived all such conflicts of 
interest. If the Secretary finds that such an individual cannot 
be represented adequately by such an attorney due to such 
conflicts of interest, the Secretary may petition the 
appropriate United States District Court which shall have 
jurisdiction to disqualify such attorney as counsel to such 
individual in the matter. The Secretary may make such a motion 
as part of an ongoing related civil action or as a 
miscellaneous action.
  [(b) For the purpose]
  (b) Accident Investigations.--
          (1) In general.--For all accident investigations 
        under this Act, the Secretary shall--
                  (A) determine why the accident occurred;
                  (B) determine whether there were violations 
                of law, mandatory health and safety standards, 
                or other requirements, and if such violations 
                are found, issue citations and penalties, and 
                in cases involving possible criminal actions, 
                the Secretary may refer such matters to the 
                Attorney General; and
                  (C) make recommendations to avoid any 
                recurrence.
          (2) Independent accident investigations.--
                  (A) In general.--There shall be, in addition 
                to an accident investigation under paragraph 
                (1), an independent investigation by an 
                independent investigation panel (referred to in 
                this subsection as the ``Panel'') appointed 
                under subparagraph (B) for--
                          (i) any accident involving 3 or more 
                        deaths; or
                          (ii) any accident that is of such 
                        severity or scale for potential or 
                        actual harm that, in the opinion of the 
                        Secretary of Health and Human Services, 
                        the accident merits an independent 
                        investigation.
                  (B) Appointment.--
                          (i) In general.--As soon as 
                        practicable after an accident described 
                        in subparagraph (A), the Secretary of 
                        Health and Human Services shall appoint 
                        5 members for the Panel required under 
                        this paragraph from among individuals 
                        who have expertise in accident 
                        investigations, mine engineering, or 
                        mine safety and health that is relevant 
                        to the particular investigation.
                          (ii) Chairperson.--The Panel shall 
                        include, and be chaired by, a 
                        representative from the Office of Mine 
                        Safety and Health Research, of the 
                        National Institute for Occupational 
                        Safety and Health (referred to in this 
                        subsection as NIOSH).
                          (iii) Conflicts of interest.--Panel 
                        members, and staff and consultants 
                        assisting the Panel with an 
                        investigation, shall be free from 
                        conflicts of interest with regard to 
                        the investigation, and be subject to 
                        the same standards of ethical conduct 
                        for persons employed by the Secretary.
                          (iv) Composition.--The Secretary of 
                        Health and Human Services shall appoint 
                        as members of the Panel--
                                  (I) 1 operator of a mine or 
                                individual representing mine 
                                operators, and
                                  (II) 1 representative of a 
                                labor organization that 
                                represents miners,
                        and may not appoint more than 1 of 
                        either such individuals as members of 
                        the Panel.
                          (v) Staff and expenses.--The Director 
                        of NIOSH shall designate NIOSH staff to 
                        facilitate the work of the Panel. The 
                        Director may accept as staff personnel 
                        on detail from other Federal agencies 
                        or re-employ annuitants. The detail of 
                        personnel under this paragraph may be 
                        on a non-reimbursable basis, and such 
                        detail shall be without interruption or 
                        loss of civil service status or 
                        privilege. The Director of NIOSH shall 
                        have the authority to procure on behalf 
                        of the Panel such materials, supplies 
                        or services, including technical 
                        experts, as requested in writing by a 
                        majority of the Panel.
                          (vi) Compensation and travel.--All 
                        members of the Panel who are officers 
                        or employees of the United States shall 
                        serve without compensation in addition 
                        to that received for their services as 
                        officers or employees of the United 
                        States. Each Panel member who is not an 
                        officer or employee of the United 
                        States shall be compensated at a rate 
                        equal to the daily equivalent of the 
                        annual rate of basic pay prescribed for 
                        level IV of the Executive Schedule 
                        under section 5315 of title 5, United 
                        States Code, for each day (including 
                        travel time) during which such member 
                        is engaged in the performance of duties 
                        of the Panel. The members of the Panel 
                        shall be allowed travel expenses, 
                        including per diem in lieu of 
                        subsistence, at rates authorized for 
                        employees of agencies under subchapter 
                        1 of chapter 57 of title 5, United 
                        States Code, while away from their 
                        homes or regular places of business in 
                        the performance of services for the 
                        Panel.
                  (C) Duties.--The Panel shall--
                          (i) assess and identify any factors 
                        that caused the accident, including 
                        deficiencies in safety management 
                        systems, regulations, enforcement, 
                        industry practices or guidelines, or 
                        organizational failures;
                          (ii) identify and evaluate any 
                        contributing actions or inactions of--
                                  (I) the operator;
                                  (II) any contractors or other 
                                persons engaged in mining-
                                related functions at the site;
                                  (III) any State agency with 
                                oversight responsibilities;
                                  (IV) any agency or office 
                                within the Department of Labor; 
                                or
                                  (V) any other person or 
                                entity (including equipment 
                                manufacturers);
                          (iii) review the determinations and 
                        recommendations by the Secretary under 
                        paragraph (1);
                          (iv) prepare a report that--
                                  (I) includes the findings 
                                regarding the causal factors 
                                described in clauses (i) and 
                                (ii);
                                  (II) identifies any strengths 
                                and weaknesses in the 
                                Secretary's investigation; and
                                  (III) includes 
                                recommendations, including 
                                interim recommendations where 
                                appropriate, to industry, labor 
                                organizations, State and 
                                Federal agencies, or Congress, 
                                regarding policy, regulatory, 
                                enforcement, administrative, or 
                                other changes, which in the 
                                judgment of the Panel, would 
                                prevent a recurrence at other 
                                mines; and
                          (v) publish such findings and 
                        recommendations (excluding any portions 
                        which the Attorney General requests 
                        that the Secretary withhold in relation 
                        to a criminal referral) and hold public 
                        meetings to inform the mining community 
                        and families of affected miners of the 
                        Panel's findings and recommendations.
                  (D) Hearings; applicability of certain 
                federal law.--The Panel shall have the 
                authority to conduct public hearings or 
                meetings, but shall not be subject to the 
                Federal Advisory Committee Act. All public 
                hearings of the Panel shall be subject to the 
                requirements under section 552b of title 5, 
                United States Code.
                  (E) Memorandum of understanding.--Not later 
                than 90 days after the date of enactment of the 
                Robert C. Byrd Miner Safety and Health Act of 
                2010, the Secretary of Labor and the Secretary 
                of Health and Human Services shall conclude and 
                publically issue a memorandum of understanding 
                that--
                          (i) outlines administrative 
                        arrangements which will facilitate a 
                        coordination of efforts between the 
                        Secretary of Labor and the Panel, 
                        ensures that the Secretary's 
                        investigation under paragraph (1) is 
                        not delayed or otherwise compromised by 
                        the activities of the Panel, and 
                        establishes a process to resolve any 
                        conflicts between such investigations;
                          (ii) ensures that Panel members or 
                        staff will be able to participate in 
                        investigation activities (such as mine 
                        inspections and interviews) related to 
                        the Secretary of Labor's investigation 
                        and will have full access to documents 
                        that are assembled or produced in such 
                        investigation, and ensures that the 
                        Secretary of Labor will make all of the 
                        authority available to such Secretary 
                        under this section, including subpoena 
                        authority, to obtain information and 
                        witnesses which may be requested by 
                        such Panel; and
                          (iii) establishes such other 
                        arrangements as are necessary to 
                        implement this paragraph.
                  (F) Procedures.--Not later than 90 days after 
                the date of enactment of the Robert C. Byrd 
                Miner Safety and Health Act of 2010, the 
                Secretary of Health and Human Services shall 
                establish procedures to ensure the consistency 
                and effectiveness of Panel investigations. In 
                establishing such procedures, such Secretary 
                shall consult with independent safety 
                investigation agencies, sectors of the mining 
                industry, representatives of miners, families 
                of miners involved in fatal accidents, State 
                mine safety agencies, and mine rescue 
                organizations. Such procedures shall include--
                          (i) authority for the Panel to use 
                        evidence, samples, interviews, data, 
                        analyses, findings, or other 
                        information gathered by the Secretary 
                        of Labor, as the Panel determines 
                        valid;
                          (ii) provisions to ensure 
                        confidentiality if requested by any 
                        witness, to the extent permitted by 
                        law, and prevent conflicts of interest 
                        in witness representation; and
                          (iii) provisions for preservation of 
                        public access to the Panel's records 
                        through the Secretary of Health and 
                        Human Services.
                  (G) Authorization of appropriations.--There 
                is authorized to be appropriated to carry out 
                this subsection such sums as may be necessary.
          (3) Powers and processes.--For the purpose of making 
        any investigation of any accident or other occurrence 
        relating to health or safety in a coal or other mine, 
        the Secretary may, after notice, hold public hearings, 
        and may sign and issue subpoenas for the attendance and 
        testimony of witnesses and the production of relevant 
        papers, books and documents, and administer oaths. 
        Witnesses summoned shall be paid the same fees and 
        mileage that are paid witnesses in the courts of the 
        United States. In case of contumacy or refusal to obey 
        a subpoena served upon any person under this section, 
        the district court of the United States. In case of 
        contumacy or refusal to obey a subpoena served upon any 
        person under this section, the district court of the 
        United States for any district in which such person is 
        found or resides or transacts business, upon 
        application by the United States and after notice to 
        such person, shall have jurisdiction to issue an order 
        requiring such person to appear and give testimony 
        before the Secretary or to appear and produce documents 
        before the Secretary, or both, and any failure to obey 
        such order of the court may be punished by such court 
        as a contempt thereof.
          (4) Additional powers.--For purposes of making 
        inspections and investigations, the Secretary or the 
        Secretary's designee, may sign and issue subpoenas for 
        the attendance and testimony of witnesses and the 
        production of information, including all relevant data, 
        papers, books, documents, and items of physical 
        evidence, and administer oaths. Witnesses summoned 
        shall be paid the same fees that are paid witnesses in 
        the courts of the United States. In carrying out 
        inspections and investigations under this subsection, 
        authorized representatives of the Secretary and 
        attorneys representing the Secretary are authorized to 
        question any individual privately. Under this section, 
        any individual who is willing to speak with or provide 
        a statement to such authorized representatives or 
        attorneys representing the Secretary may do so without 
        the presence, involvement, or knowledge of the operator 
        or the operator's agents or attorneys. The Secretary 
        shall keep the identity of an individual providing such 
        a statement confidential to the extent permitted by 
        law. Nothing in this paragraph prevents any individual 
        from being represented by that individual's personal 
        attorney.

           *       *       *       *       *       *       *

  (d) All accidents, including unintentional roof falls (except 
in any abandoned panels or in areas which are inaccessible or 
unsafe for inspections), shall be investigated by the operator 
or his agent to determine the cause and the means of preventing 
a recurrence. Records of such accidents and investigations 
shall be kept and the information shall be made available to 
the Secretary or his authorized representative and the 
appropriate State agency. Such records shall be open for 
inspection by interested persons. [Such records shall include 
man-hours worked and shall be reported at a frequency 
determined by the Secretary, but at least annually.] The 
records to be kept and made available by the operator of the 
mine shall include man-hours worked and occupational injuries 
and illnesses with respect to the miners in their employ or 
under their direction or authority, and shall be maintained 
separately for each mine and be reported at a frequency 
determined by the Secretary, but at least annually. Independent 
contractors (within the meaning of section 3(d)) shall be 
responsible for reporting accidents, occupational injuries and 
illnesses, and man-hours worked for each mine with respect to 
the miners in their employ or under their direction or 
authority, and shall be reported at a frequency determined by 
the Secretary, but not less than annually. Reports or records 
of operators and contractors required and submitted to the 
Secretary under this subsection shall be signed and certified 
as accurate and complete by a knowledgeable and responsible 
person possessing a certification, registration, qualification, 
or other approval, as provided for under section 118. Knowingly 
falsifying such records or reports shall be grounds for 
revoking such certification, registration, qualification, or 
other approval under the standards established under subsection 
(b)(1) of such section.

           *       *       *       *       *       *       *

  (f) Subject to regulations issued by the Secretary, a 
representative of the operator and a representative authorized 
by his miners shall be given an opportunity to accompany the 
Secretary of his authorized representative during the physical 
inspection of any coal or other mine made pursuant to the 
provisions of subsection (a), for the purpose of aiding such 
inspection and to participate in pre- or post-inspection 
conferences held at the mine. Where there is no authorized 
miner representative, the Secretary or his authorized 
representative shall consult with a reasonable number of miners 
concerning matters of health and safety in such mine. Such 
representative of miners who is also an employee of the 
operator shall suffer no loss of pay during the period of his 
participation in the inspection made under this subsection. To 
the extent that the Secretary or authorized representative of 
the Secretary determines that more than one representative from 
each party would further aid the inspection, he can permit each 
party to have an equal number of such additional 
representatives. However, only one such representative of 
miners who is an employee of the operator shall be entitled to 
suffer no loss of pay during the period of such participation 
under the provisions of this subsection. If any miner is 
entrapped or otherwise prevented as the result of an accident 
in such mine from designating such a representative directly, 
such miner's closest relative may act on behalf of such miner 
in designating such a representative. If any miner is not 
currently working in such mine as the result of an accident in 
such mine, but would be currently working in such mine but for 
such accident, such miner may designate such a representative. 
A representative of miners shall have the right to participate 
in any accident investigation the Secretary initiates pursuant 
to subsection (b), including the right to participate in 
investigative interviews and to review all relevant papers, 
books, documents and records produced in connection with the 
accident investigation, unless the Secretary in consultation 
with the Attorney General excludes such representatives from 
the investigation on the grounds that inclusion would interfere 
with or adversely impact a criminal investigation that is 
pending or under consideration. Compliance with this subsection 
shall not be a jurisdictional prerequisite to the enforcement 
of any provision of this Act.

           *       *       *       *       *       *       *

  (k) In the event of any accident occurring in a coal or other 
mine, an authorized representative of the Secretary[, when 
present,] may issue such orders as he deems appropriate to 
insure the safety of any person in the coal or other mine, and 
the operator of such mine shall obtain the approval of such 
representative, in consultation with appropriate State 
representatives, when feasible, of any plan to recover any 
person in such mine or to recover the coal or other mine or 
return affected areas of such mine to normal.

                          CITATIONS AND ORDERS

  Sec. 104. (a) * * *

           *       *       *       *       *       *       *

  (d)(1) If, upon any inspection of a coal or other mine, an 
authorized representative of the Secretary finds that there has 
been a violation of [any mandatory health or safety standard] 
any provision of this Act, including any mandatory health or 
safety standard or regulation promulgated under this Act, and 
if he also finds that, while the conditions created by such 
violation do not cause imminent danger, such violation is of 
such nature as could significantly and substantially contribute 
to the cause and effect of a coal or other mine safety or 
health hazard, and if he finds such violation to be caused by 
an unwarrantable failure of such operator to comply with [such 
mandatory health or safety standards] such provisions, 
regulations, or mandatory health or safety standards, he shall 
include such finding in any citation given to the operator 
under this Act. If, during the same inspection or any 
subsequent inspection of such mine within 90 days after the 
issuance of such citation, an authorized representative of the 
Secretary finds another violation of [any mandatory health or 
safety standard] any provision of this Act, including any 
mandatory health or safety standard or regulation promulgated 
under this Act, and finds such violation to be also caused by 
an unwarrantable failure of such operator to so comply, he 
shall forthwith issue an order requiring the operator to cause 
all persons in the area affected by such violation, except 
those persons referred to in subsection (c) to be withdrawn 
from, and to be prohibited from entering, such area until an 
authorized representative of the Secretary determines that such 
violation has been abated.

           *       *       *       *       *       *       *

  [(e)(1) If an operator has a pattern of violations of 
mandatory health or safety standards in the coal or other mine 
which are of such nature as could have significantly and 
substantially contributed to the cause and effect of coal or 
other mine health or safety hazards, he shall be given written 
notice that such pattern exists. If, upon any inspection within 
90 days after the issuance of such notice, an authorized 
representative of the Secretary finds any violation of a 
mandatory health or safety standard which could significantly 
and substantially contribute to the cause and effect of a coal 
or other mine safety or health hazard, the authorized 
representative shall issue an order requiring the operator to 
cause all persons in the area affected by such violation, 
except those persons referred to in subsection (c), to be 
withdrawn from, and to be prohibited from entering, such area 
until an authorized representative of the Secretary determines 
that such violation has been abated.
  [(2) If a withdrawal order with respect to any area in a coal 
or other mine has been issued pursuant to paragraph (1), a 
withdrawal order shall be issued by an authorized 
representative of the Secretary who finds upon any subsequent 
inspection the existence in such mine of any violation of a 
mandatory health or safety standard which could significantly 
and substantially contribute to the cause and effect of a coal 
or other mine health or safety hazard. The withdrawal order 
shall remain in effect until an authorized representative of 
the Secretary determines that such violation has been abated.
  [(3) If, upon an inspection of the entire coal or other mine, 
an authorized representative of the Secretary finds no 
violations of mandatory health or safety standards that could 
significantly and substantially contribute to the cause and 
effect of a coal or other mine health and safety hazard, the 
pattern of violations that resulted in the issuance of a notice 
under paragraph (1) shall be deemed to be terminated and the 
provisions of paragraphs (1) and (2) shall no longer apply. 
However, if as a result of subsequent violations, the operator 
reestablishes a pattern of violations, paragraphs (1) and (2) 
shall again be applicable to such operator.
  [(4) The Secretary shall make such rules as he deems 
necessary to establish criteria for determining when a pattern 
of violations of mandatory health or safety standards exists.]
  (e) Pattern of Recurring Noncompliance or Accidents.--
          (1) Pattern status.--
                  (A) In general.--For purposes of this 
                subsection, a coal or other mine shall be 
                placed in pattern status if such mine has, as 
                determined based on the regulations promulgated 
                under paragraph (8)--
                          (i) a pattern of--
                                  (I) citations for significant 
                                and substantial violations;
                                  (II) citations and withdrawal 
                                orders issued for unwarrantable 
                                failure to comply with 
                                mandatory health and safety 
                                standards under section 104(d);
                                  (III) citations for flagrant 
                                violations within the meaning 
                                of section 110(b);
                                  (IV) withdrawal orders issued 
                                under any other section of this 
                                Act (other than orders issued 
                                under subsections (j) or (k) of 
                                section 103); and
                                  (V) accidents and injuries; 
                                or
                          (ii) a pattern consisting of any 
                        combination of citations, orders, 
                        accidents, or injuries described in 
                        subclauses (I) through (V).
                  (B) Mitigating circumstances.--
                Notwithstanding subparagraph (A), if the 
                Secretary, after conducting an assessment of a 
                coal or other mine that otherwise qualifies for 
                pattern status, certifies that there are 
                mitigating circumstances wherein the operator 
                has already implemented remedial measures that 
                have reduced risks to the health and safety of 
                miners to the point that such risks are no 
                longer elevated and has taken sufficient 
                measures to ensure such elevated risk will not 
                recur, the Secretary may deem such mine to not 
                be in pattern status under this subsection. The 
                Secretary shall issue any such certification of 
                such mitigating circumstances that would 
                preclude the placement of a mine in pattern 
                status as a written finding, which shall, not 
                later than 10 days after the certification is 
                made, be--
                          (i) made available on the public 
                        website of the Mine Safety and Health 
                        Administration; and
                          (ii) transmitted to the Committee on 
                        Education and Labor of the House of 
                        Representatives and the Committee on 
                        Health, Education, Labor, and Pensions 
                        of the Senate.
                  (C) Frequency.--Not less frequently than 
                every 6 months, the Secretary shall identify 
                any mines which meet the criteria set forth in 
                paragraph (8).
          (2) Actions following placement of mine in pattern 
        status.--For any coal or other mine that is in pattern 
        status, the Secretary shall--
                  (A) notify the operator of such mine that the 
                mine is being placed in pattern status;
                  (B) issue an order requiring such operator to 
                cause all persons to be withdrawn from such 
                mine, except those persons referred to in 
                subsection (c) or authorized by an order of the 
                Secretary issued under this subsection;
                  (C) issue a remediation order described in 
                paragraph (3) to such operator within 3 days; 
                and
                  (D) require that the number of regular 
                inspections of such mine required under section 
                103 be increased to 8 per year while the mine 
                is in pattern status.
        Notice advising operators that they face potential 
        placement in pattern status shall not be a requirement 
        for issuing a withdrawal order to operators under this 
        subsection.
          (3) Remediation order.--
                  (A) In general.--A remediation order issued 
                to an operator under paragraph (2)(C) may 
                require the operator to carry out one or more 
                of the following requirements, pursuant to a 
                timetable for commencing and completing such 
                actions or as a condition of miners reentering 
                the mine:
                          (i) Provide specified training, 
                        including training not otherwise 
                        required under this Act.
                          (ii) Institute and implement an 
                        effective health and safety management 
                        program approved by the Secretary, 
                        including--
                                  (I) the employment of safety 
                                professionals, certified 
                                persons, and adequate numbers 
                                of personnel for the mine, as 
                                may be required by the 
                                Secretary;
                                  (II) specific inspection, 
                                recordkeeping, reporting and 
                                other requirements for the mine 
                                as the Secretary may establish; 
                                and
                                  (III) other requirements to 
                                ensure compliance and to 
                                protect the health and safety 
                                of miners or prevent accidents 
                                or injuries as the Secretary 
                                may determine are necessary.
                          (iii) Facilitate any effort by the 
                        Secretary to communicate directly with 
                        miners employed at the mine outside the 
                        presence of the mine operators or its 
                        agents, for the purpose of obtaining 
                        information about mine conditions, 
                        health and safety practices, or 
                        advising miners of their rights under 
                        this Act.
                  (B) Modification of and failure to comply 
                with remediation order.--The Secretary may 
                modify the remediation order, as necessary, to 
                protect the health and safety of miners. If the 
                mine operator fails to fully comply with the 
                remediation order during the time a mine is in 
                pattern status, the Secretary shall reinstate 
                the withdrawal order under paragraph (2)(B).
                  (C) Extension of deadlines.--An extension of 
                a deadline under the remediation order may be 
                granted on a temporary basis and only upon a 
                showing that the operator took all feasible 
                measures to comply with the order and only to 
                the extent that the operator's failure to 
                comply is beyond the control of the operator.
          (4) Conditions for lifting a withdrawal order.--A 
        withdrawal order issued under paragraph (2)(B) shall 
        not be lifted until the Secretary verifies that--
                  (A) any and all violations or other 
                conditions in the mine identified in the 
                remediation order have been or are being fully 
                abated or corrected as outlined in the 
                remediation order; and
                  (B) the operator has completed any other 
                actions under the remediation order that are 
                required for reopening the mine.
          (5) Performance evaluation.--
                  (A) Performance benchmarks.--The Secretary 
                shall evaluate the performance of each mine in 
                pattern status every 90 days during which the 
                mine is producing and determine if, for such 
                90-day period--
                          (i) the rate of citations at such 
                        mine for significant and substantial 
                        violations--
                                  (I) is in the top performing 
                                35th percentile of such rates, 
                                respectively, for all mines of 
                                similar size and type; or
                                  (II) has been reduced by 70 
                                percent from the date on which 
                                such mine was placed in pattern 
                                status, provided that the rate 
                                of such violations is not 
                                greater than the mean for all 
                                mines of similar size and type;
                          (ii) the accident and injury rates at 
                        such mine are in the top performing 
                        35th percentile of such rates, 
                        respectively, for all mines of similar 
                        size and type; and
                          (iii) no citations or withdrawal 
                        orders for a violation under section 
                        104(d), no withdrawal orders for 
                        imminent danger under section 107 
                        (issued in connection with a citation), 
                        and no flagrant violations within the 
                        meaning of section 110(b), were issued 
                        for such mine.
                  (B) Reissuance of withdrawal orders.--If an 
                operator being evaluated fails to achieve the 
                performance benchmarks described in 
                subparagraph (A), the Secretary may reissue a 
                withdrawal order under paragraph (2)(B) to 
                remedy any recurring conditions that led to 
                pattern status under this subsection, and may 
                modify the remediation order, as necessary, to 
                protect the health and safety of miners.
          (6) Termination of pattern status.--
                  (A) Performance benchmarks.--The Secretary 
                shall remove a coal or other mine from pattern 
                status if, for a 1-year period during which the 
                mine is producing--
                          (i) the rate of citations at such 
                        mine for significant and substantial 
                        violations--
                                  (I) is in the top performing 
                                25th percentile of such rates, 
                                respectively, for all mines of 
                                similar size and type; or
                                  (II) has been reduced by 80 
                                percent from the date on which 
                                such mine was placed in pattern 
                                status, provided that the rate 
                                of such violations is not 
                                greater than the mean for all 
                                mines of similar size and type;
                          (ii) the accident and injury rates at 
                        such mine are in the top performing 
                        25th percentile of such rates, 
                        respectively, for all mines of similar 
                        size and type; and
                          (iii) no citations or withdrawal 
                        orders for violations under section 
                        104(d), no withdrawal orders for 
                        imminent danger under section 107 
                        (issued in connection with a citation), 
                        and no flagrant violations within the 
                        meaning of section 110(b), were issued 
                        for such mine.
                  (B) Continuation of pattern status.--Should 
                the mine operator fail to meet the performance 
                benchmarks described in subparagraph (A), the 
                Secretary shall extend the mine's placement in 
                pattern status until such benchmarks are 
                achieved.
                  (C) Construction.--A withdrawal order issued 
                as the result of a condition that was entirely 
                beyond the operator's ability to prevent or 
                control shall not preclude the operator from 
                being removed from pattern status, provided the 
                operator did not cause or allow miners to be 
                exposed to the condition in violation of any 
                provision of this Act or a mandatory health or 
                safety standard or regulation promulgated under 
                this Act.
          (7) Expedited review.--If any order under this 
        subsection is contested, the review of such order shall 
        be conducted on an expedited basis, in accordance with 
        section 105(d).
          (8) Regulations.--
                  (A) In general.--Not later than 120 days 
                after the date of enactment of the Robert C. 
                Byrd Miner Safety and Health Act of 2010, the 
                Secretary shall issue interim final regulations 
                that shall define--
                          (i) the threshold benchmarks to 
                        trigger pattern status under paragraph 
                        (1) and cause a withdrawal order to be 
                        issued or reissued; and
                          (ii) the performance benchmarks 
                        described in paragraphs (5)(A) and 
                        (6)(A).
                  (B) Threshold benchmarks.--In establishing 
                threshold benchmarks to trigger pattern status 
                for mines with significantly poor compliance 
                that contributes to unsafe or unhealthy 
                conditions, the Secretary--
                          (i) shall--
                                  (I) consider rates of 
                                citations and orders described 
                                in paragraph (1)(A) and rates 
                                of reportable accidents and 
                                injuries within the preceding 
                                180-day period; and
                                  (II) assign appropriate 
                                weight to various types of 
                                citations, orders, accidents, 
                                injuries, or other factors; and
                          (ii) may include--
                                  (I) factors such as mine 
                                type, production levels, number 
                                of miners, hours worked by 
                                miners, number of mechanized 
                                mining units (or similar 
                                production characteristics), 
                                and the presence of a 
                                representative of miners at the 
                                mine for purposes of collective 
                                bargaining;
                                  (II) the mine's history of 
                                citations, violations, orders, 
                                and other enforcement actions, 
                                or rates of reportable 
                                accidents and injuries, over 
                                any period determined relevant 
                                by the Secretary; and
                                  (III) other factors the 
                                Secretary may determine 
                                appropriate to protect the 
                                safety and health of miners.
                  (C) Final regulation.--Not later than 2 years 
                after the date of enactment of the Robert C. 
                Byrd Miner Safety and Health Act of 2010, the 
                Secretary shall promulgate a final regulation 
                implementing this paragraph.
          (9) Public database and information.--The Secretary 
        shall establish and maintain a publically available 
        electronic database containing the data used to 
        determine pattern status for all coal or other mines 
        which shall be updated as frequently as practicable. 
        Such database shall be searchable and have the capacity 
        to provide comparative data about the health and safety 
        at mines of similar sizes and types. The Secretary 
        shall also make publicly available--
                  (A) a list of all mines the Secretary places 
                in pattern status, updated within 7 days of 
                placing an additional mine in pattern status;
                  (B) the metrics, including percentile 
                information, used for the purposes of the 
                performance benchmarks and threshold benchmarks 
                described in paragraphs (5), (6), and (8); and
                  (C) guidance for the use of such metrics and 
                benchmarks to assist operators in determining 
                the performance their mines under criteria 
                established by the Secretary.
          (10) Operator fees for additional inspections.--
                  (A) Assessment and collection.--Beginning 120 
                days after the date of enactment of the Robert 
                C. Byrd Miner Safety and Health Act of 2010, 
                the Secretary shall assess and collect fees, in 
                accordance with this paragraph, from each coal 
                or other mine in pattern status for the costs 
                of additional inspections under this 
                subsection. The Secretary shall issue, by rule, 
                a schedule of fees to be assessed against coal 
                or other mines of varying types and sizes, and 
                shall collect and assess amounts under this 
                paragraph based on the schedule.
                  (B) Use.--Amounts collected as provided in 
                subparagraph (A) shall only be available to the 
                Secretary for making expenditures to carry out 
                the additional inspections required under 
                paragraph (2)(D).
                  (C) Authorization of appropriations.--In 
                addition to any other amounts authorized to be 
                appropriated under this Act, there is 
                authorized to be appropriated to the Assistant 
                Secretary for Mine Safety and Health for each 
                fiscal year in which fees are collected under 
                subparagraph (A) an amount equal to the total 
                amount of fees collected under such 
                subparagraph during that fiscal year. Such 
                amounts are authorized to remain available 
                until expended. If on the first day of a fiscal 
                year a regular appropriation to the Commission 
                has not been enacted, the Commission shall 
                continue to collect fees (as offsetting 
                collections) under this subsection at the rate 
                in effect during the preceding fiscal year, 
                until 5 days after the date such regular 
                appropriation is enacted.
                  (D) Collection and crediting of fees.--Fees 
                authorized and collected under this paragraph 
                shall be deposited and credited as offsetting 
                collections to the account providing 
                appropriations to the Mine Safety and Health 
                Administration and shall not be collected for 
                any fiscal year except to the extent and in the 
                amount provided in advance in appropriation 
                Acts.

           *       *       *       *       *       *       *

  (g)(1) * * *
  (2) No miner who is ordered withdrawn from a coal or other 
mine [under paragraph (1)] under paragraph (1) or under section 
115(e) shall be discharged or otherwise discriminated against 
because of such order; and no miner who is ordered withdrawn 
from a coal or other mine [under paragraph (1)] under paragraph 
(1) or under section 115(e) shall suffer a loss of compensation 
during the period necessary for such miner to receive such 
training and for an authorized representative of the Secretary 
to determine that such miner has received the requisite 
training.

           *       *       *       *       *       *       *


                       PROCEDURE FOR ENFORCEMENT

  Sec. 105. (a) * * *

           *       *       *       *       *       *       *

  [(c)(1) No person shall discharge or in any manner 
discriminate against or cause to be discharged or cause 
discrimination against or otherwise interfere with the exercise 
of the statutory rights of any miner, representative of miners 
or applicant for employment in any coal or other mine subject 
to this Act because such miner, representative of miners or 
applicant for employment has filed or made a complaint under or 
related to this Act, including a complaint notifying the 
operator or the operator's agent, or the representative of the 
miners at the coal or other mine of an alleged danger or safety 
or health violation in a coal or other mine, or because such 
miner, representative of miners or applicant for employment is 
the subject of medical evaluations and potential transfer under 
a standard published pursuant to section 101 or because such 
miner, representative of miners or applicant for employment has 
instituted or caused to be instituted any proceeding under or 
related to this Act or has testified or is about to testify in 
any such preoceeding, or because of the exercise by such miner, 
representative of miners or applicant for employment on behalf 
of himself or others of any statutory right afforded by this 
Act.
  [(2) Any miner or applicant for employment or representative 
of miners who believes that he has been discharged, interfered 
with, or otherwise discriminated against by any person in 
violation of this subsection may, within 60 days after such 
violation occurs, file a complaint with the Secretary alleging 
such discrimination. Upon receipt of such complaint, the 
Secretary shall forward a copy of the complaint to the 
respondent and shall cause such investigation to be made as he 
deems appropriate. Such investigation shall commence within 15 
days of the Secretary's receipt of the complaint, and if the 
Secretary finds that such complaint was not frivolously 
brought, the Commission, on an expedited basis upon application 
of the Secretary, shall order the immediate reinstatement of 
the miner pending final order on the complaint. If upon such 
investigation, the Secretary determines that the provisions of 
this subsection have been violated, he shall immediately file a 
complaint with the Commission, with service upon the alleged 
violator and the miner, applicant for employment, or 
representative of miners alleging such discrimination or 
interference and propose an order granting appropriate relief. 
The Commission shall afford an opportunity for a hearing (in 
accordance with section 554 of title 5, United States Code, but 
without regard to subsection (a)(3) of such section) and 
thereafter shall issue an order, based upon findings of fact, 
affirming, modifying, or vacating the Secretary's proposed 
order, or directing other appropriate relief. Such order shall 
become final 30 days after its issuance. The Commission shall 
have authority in such proceedings to require a person 
committing a violation of this subsection to take such 
affirmative action to abate the violation as the Commission 
deems appropriate, including, but not limited to, the rehiring 
or reinstatement of the miner to his former position with back 
pay and interest. The complaining miner, applicant, or 
representative of miners may persent additional evidence on his 
own behalf during any hearing held pursuant to this paragraph.
  [(3) Within 90 days of the receipt of a complaint filed under 
paragraph (2), the Secretary shall notify, in writing, the 
miner, applicant for employment, or representative of miners of 
his determination whether a violation has occurred. If the 
Secretary, upon investigation, determines that the provisions 
of this subsection have not been violated, the complainant 
shall have the right, within 30 days notice of the Secretary's 
determination, to file an action in his own behalf before the 
Commission, charging discrimination or interference in 
violation of paragraph (1). The Commission shall afford an 
opportunity for a hearing (in accordance with section 554 of 
title 5, United States Code, but without regard to subsection 
(a)(3) of such section), and thereafter shall issue an order, 
based upon findings of fact, dismissing or sustaining the 
complainant's charges and, if the charges are sustained, 
granting such relief as it deems appropriate, including, but 
not limited to, an order requiring the rehiring or 
reinstatement of the miner of his former position with back pay 
and interest or such remedy as my be appropriate. Such order 
shall become final 30 days after its issuance. Whenever an 
order is issued sustaining the complainant's charges under this 
subsection, a sum equal to the aggregate amount of all costs 
and expenses (including attorney's fees) as determined by the 
Commission to have been reasonably incurred by the miner, 
applicant for employment or representaitve of miners for, or in 
connection with, the institution and prosecution of such 
proceedings shall be assessed against the person committing 
such violation. Proceedings under this section shall be 
expedited by the Secretary and the Commission. Any order issued 
by the Commission under this paragraph shall be subject to 
judicial review in accordance with section 106. Violations by 
any person of paragraph (1) shall be subject to the provisions 
of sections 108 and 110(a).]
  (c) Protection From Retaliation.--
          (1) Retaliation prohibited.--
                  (A) Retaliation for complaint or testimony.--
                No person shall discharge or in any manner 
                discriminate against or cause to be discharged 
                or cause discrimination against or otherwise 
                interfere with the exercise of the statutory 
                rights of any miner or other employee of an 
                operator, representative of miners, or 
                applicant for employment, because--
                          (i) such miner or other employee, 
                        representative, or applicant for 
                        employment--
                                  (I) has filed or made a 
                                complaint, or is about to file 
                                or make a complaint, including 
                                a complaint notifying the 
                                operator or the operator's 
                                agent, or the representative of 
                                the miners at the coal or other 
                                mine of an alleged danger or 
                                safety or health violation in a 
                                coal or other mine;
                                  (II) instituted or caused to 
                                be instituted, or is about to 
                                institute or cause to be 
                                instituted, any proceeding 
                                under or related to this Act or 
                                has testified or is about to 
                                testify in any such proceeding 
                                or because of the exercise by 
                                such miner or other employee, 
                                representative, or applicant 
                                for employment on behalf of him 
                                or herself or others of any 
                                right afforded by this Act, or 
                                has reported any injury or 
                                illness to an operator or 
                                agent;
                                  (III) has testified or is 
                                about to testify before 
                                Congress or any Federal or 
                                State proceeding related to 
                                safety or health in a coal or 
                                other mine; or
                                  (IV) refused to violate any 
                                provision of this Act, 
                                including any mandatory health 
                                and safety standard or 
                                regulation; or
                          (ii) such miner is the subject of 
                        medical evaluations and potential 
                        transfer under a standard published 
                        pursuant to section 101.
                  (B) Retaliation for refusal to perform 
                duties.--
                          (i) In general.--No person shall 
                        discharge or in any manner discriminate 
                        against a miner or other employee of an 
                        operator for refusing to perform the 
                        miner's or other employee's duties if 
                        the miner or other employee has a good-
                        faith and reasonable belief that 
                        performing such duties would pose a 
                        safety or health hazard to the miner or 
                        other employee or to any other miner or 
                        employee.
                          (ii) Standard.--For purposes of 
                        clause (i), the circumstances causing 
                        the miner's or other employee's good-
                        faith belief that performing such 
                        duties would pose a safety or health 
                        hazard shall be of such a nature that a 
                        reasonable person, under the 
                        circumstances confronting the miner or 
                        other employee, would conclude that 
                        there is such a hazard. In order to 
                        qualify for protection under this 
                        paragraph, the miner or other employee, 
                        when practicable, shall have 
                        communicated or attempted to 
                        communicate the safety or health 
                        concern to the operator and have not 
                        received from the operator a response 
                        reasonably calculated to allay such 
                        concern.
          (2) Complaint.--Any miner or other employee or 
        representative of miners or applicant for employment 
        who believes that he or she has been discharged, 
        disciplined, or otherwise discriminated against by any 
        person in violation of paragraph (1) may file a 
        complaint with the Secretary alleging such 
        discrimination not later than 180 days after the later 
        of--
                  (A) the last date on which an alleged 
                violation of paragraph (1) occurs; or
                  (B) the date on which the miner or other 
                employee or representative knows or should 
                reasonably have known that such alleged 
                violation occurred.
          (3) Investigation and hearing.--
                  (A) Commencement of investigation and initial 
                determination.--Upon receipt of such complaint, 
                the Secretary shall forward a copy of the 
                complaint to the respondent, and shall commence 
                an investigation within 15 days of the 
                Secretary's receipt of the complaint, and, as 
                soon as practicable after commencing such 
                investigation, make the determination required 
                under subparagraph (B) regarding the 
                reinstatement of the miner or other employee.
                  (B) Reinstatement.--If the Secretary finds 
                that such complaint was not frivolously 
                brought, the Commission, on an expedited basis 
                upon application of the Secretary, shall order 
                the immediate reinstatement of the miner or 
                other employee until there has been a final 
                Commission order disposing of the underlying 
                complaint of the miner or other employee. If 
                either the Secretary or the miner or other 
                employee pursues the underlying complaint, such 
                reinstatement shall remain in effect until the 
                Commission has disposed of such complaint on 
                the merits, regardless of whether the Secretary 
                pursues such complaint by filing a complaint 
                under subparagraph (D) or the miner or other 
                employee pursues such complaint by filing an 
                action under paragraph (4). If neither the 
                Secretary nor the miner or other employee 
                pursues the underlying complaint within the 
                periods specified in paragraph (4), such 
                reinstatement shall remain in effect until such 
                time as the Commission may, upon motion of the 
                operator and after providing notice and an 
                opportunity to be heard to the parties, vacate 
                such complaint for failure to prosecute.
                  (C) Investigation.--Such investigation shall 
                include interviewing the complainant and--
                          (i) providing the respondent an 
                        opportunity to submit to the Secretary 
                        a written response to the complaint and 
                        to present statements from witnesses or 
                        provide evidence; and
                          (ii) providing the complainant an 
                        opportunity to receive any statements 
                        or evidence provided to the Secretary 
                        and rebut any statements or evidence.
                  (D) Action by the secretary.--If, upon such 
                investigation, the Secretary determines that 
                the provisions of this subsection have been 
                violated, the Secretary shall immediately file 
                a complaint with the Commission, with service 
                upon the alleged violator and the miner or 
                other employee or representative of miners 
                alleging such discrimination or interference 
                and propose an order granting appropriate 
                relief.
                  (E) Action of the commission.--The Commission 
                shall afford an opportunity for a hearing (in 
                accordance with section 554 of title 5, United 
                States Code, but without regard to subsection 
                (a)(3) of such section) and thereafter shall 
                issue an order, based upon findings of fact, 
                affirming, modifying, or vacating the 
                Secretary's proposed order, or directing other 
                appropriate relief. Such order shall become 
                final 30 days after its issuance. The 
                complaining miner or other employee, 
                representative, or applicant for employment may 
                present additional evidence on his or her own 
                behalf during any hearing held pursuant to this 
                paragraph.
                  (F) Relief.--The Commission shall have 
                authority in such proceedings to require a 
                person committing a violation of this 
                subsection to take such affirmative action to 
                abate the violation and prescribe a remedy as 
                the Commission considers appropriate, 
                including--
                          (i) the rehiring or reinstatement of 
                        the miner or other employee with back 
                        pay and interest and without loss of 
                        position or seniority, and restoration 
                        of the terms, rights, conditions, and 
                        privileges associated with the 
                        complainant's employment;
                          (ii) any other compensatory and 
                        consequential damages sufficient to 
                        make the complainant whole, and 
                        exemplary damages where appropriate; 
                        and
                          (iii) expungement of all warnings, 
                        reprimands, or derogatory references 
                        that have been placed in paper or 
                        electronic records or databases of any 
                        type relating to the actions by the 
                        complainant that gave rise to the 
                        unfavorable personnel action, and, at 
                        the complainant's direction, 
                        transmission of a copy of the decision 
                        on the complaint to any person whom the 
                        complainant reasonably believes may 
                        have received such unfavorable 
                        information.
          (4) Notice to and action of complainant.--
                  (A) Notice to complainant.--Not later than 90 
                days of the receipt of a complaint filed under 
                paragraph (2), the Secretary shall notify, in 
                writing, the miner or other employee, applicant 
                for employment, or representative of miners of 
                his determination whether a violation has 
                occurred.
                  (B) Action of complainant.--If the Secretary, 
                upon investigation, determines that the 
                provisions of this subsection have not been 
                violated, the complainant shall have the right, 
                within 30 days after receiving notice of the 
                Secretary's determination, to file an action in 
                his or her own behalf before the Commission, 
                charging discrimination or interference in 
                violation of paragraph (1).
                  (C) Hearing and decision.--The Commission 
                shall afford an opportunity for a hearing (in 
                accordance with section 554 of title 5, United 
                States Code, but without regard to subsection 
                (a)(3) of such section), and thereafter shall 
                issue an order, based upon findings of fact, 
                dismissing or sustaining the complainant's 
                charges and, if the charges are sustained, 
                granting such relief as it deems appropriate as 
                described in paragraph (3)(D). Such order shall 
                become final 30 days after its issuance.
          (5) Burden of proof.--In adjudicating a complaint 
        pursuant to this subsection, the Commission may 
        determine that a violation of paragraph (1) has 
        occurred only if the complainant demonstrates that any 
        conduct described in paragraph (1) with respect to the 
        complainant was a contributing factor in the adverse 
        action alleged in the complaint. A decision or order 
        that is favorable to the complainant shall not be 
        issued pursuant to this subsection if the respondent 
        demonstrates by clear and convincing evidence that the 
        respondent would have taken the same adverse action in 
        the absence of such conduct.
          (6) Attorneys' fees.--Whenever an order is issued 
        sustaining the complainant's charges under this 
        subsection, a sum equal to the aggregate amount of all 
        costs and expenses, including attorney's fees, as 
        determined by the Commission to have been reasonably 
        incurred by the complainant for, or in connection with, 
        the institution and prosecution of such proceedings 
        shall be assessed against the person committing such 
        violation. The Commission shall determine whether such 
        costs and expenses were reasonably incurred by the 
        complainant without reference to whether the Secretary 
        also participated in the proceeding.
          (7)  expedited proceedings; judicial review.--
        Proceedings under this subsection shall be expedited by 
        the Secretary and the Commission. Any order issued by 
        the Commission under this subsection shall be subject 
        to judicial review in accordance with section 106. 
        Violations by any person of paragraph (1) shall be 
        subject to the provisions of sections 108 and 
        110(a)(4).
          (8)  procedural rights.--The rights and remedies 
        provided for in this subsection may not be waived by 
        any agreement, policy, form, or condition of 
        employment, including by any pre-dispute arbitration 
        agreement or collective bargaining agreement.
          (9) Savings.--Nothing in this subsection shall be 
        construed to diminish the rights, privileges, or 
        remedies of any employee who exercises rights under any 
        Federal or State law or common law, or under any 
        collective bargaining agreement.
  (d) Revocation of Approval of Plans.--
          (1) Revocation.--If the Secretary finds that any 
        program or plan of an operator, or part thereof, that 
        was approved by the Secretary under this Act is based 
        on inaccurate information or that circumstances that 
        existed when such plan was approved have materially 
        changed and that continued operation of such mine under 
        such plan constitutes a hazard to the safety or health 
        of miners, the Secretary shall revoke the approval of 
        such program or plan.
          (2) Withdrawal orders.--Upon revocation of the 
        approval of a program or plan under subsection (a), the 
        Secretary may immediately issue an order requiring the 
        operator to cause all persons, except those persons 
        referred to in section 104(c), to be withdrawn from 
        such mine or an area of such mine, and to be prohibited 
        from entering such mine or such area, until the 
        operator has submitted and the Secretary has approved a 
        new plan.
  [(d)] (e) If, within 30 days of receipt thereof, an operator 
of a coal or other mine notifies the Secretary that he intends 
to contest the issuance or modification of an order issued 
under section 104, or citation or a notification of proposed 
assessment of a penalty issued under subsection (a) or (b) of 
this section, or the reasonableness of the length of abatement 
time fixed in a citation or modification thereof issued under 
section 104, or any miner or representative of miners notifies 
the Secretary of an intention to contest the issuance, 
modification, or termination or any order issued under section 
104, or the reasonableness of the length of time set for 
abatement by a citation or modification thereof issued under 
section 104, the Secretary shall immediately advise the 
Commission of such notification, and the Commission shall 
afford an opportunity for a hearing (in accordance with section 
554 of title 5, United States Code, but without regard to 
subsection (a)(3) of such section), and thereafter shall issue 
an order, based on findings of fact, affirming, modifying, or 
vacating the Secretary's citation, order, or proposed penalty, 
or directing other appropriate relief. Such order shall become 
final 30 days after its issuance. The rules of procedure 
prescribed by the Commission shall provide affected miners or 
representatives of affected miners an opportunity to 
participate as parties to hearings under this section. The 
Commission shall take whatever action is necessary to expedite 
proceedings for hearing appeals of orders issued under section 
104. In any proceeding in which a party challenges the 
Secretary's decision to approve, modify, or revoke a coal or 
other mine plan under this Act, the Commission and the courts 
shall affirm the Secretary's decision unless the challenging 
party establishes that such decision was arbitrary, capricious, 
an abuse of discretion, or otherwise not in accordance with 
law.

           *       *       *       *       *       *       *


                              INJUNCTIONS

  Sec. 108. (a)(1) * * *
  (2) The Secretary may institute a civil action for relief, 
including permanent or temporary injunction, restraining order, 
or any other appropriate order in the district court of the 
United States for the district in which the coal or other mine 
is located or in which the operator of such mine has his 
principal office whenever the Secretary believes that the 
operator of a coal or other mine is engaged in [a pattern of 
violation of the mandatory health or safety standards of this 
Act, which in the judgment of the Secretary constitutes a 
continuing hazard to the health or safety of miners.] a course 
of conduct that in the judgment of the Secretary constitutes a 
continuing hazard to the health or safety of miners, including 
violations of this Act or of mandatory health and safety 
standards or regulations under this Act.

           *       *       *       *       *       *       *


                    POSTING OF ORDERS AND DECISIONS

  Sec. 109. (a) * * *

           *       *       *       *       *       *       *

  (e) Posting of Advance Notice Penalties.--Each operator of a 
coal or other mine shall post, on the bulletin board described 
in subsection (a) and in a conspicuous place near each staffed 
entrance onto the mine property, a notice stating, in a form 
and manner to be prescribed by the Secretary--
          (1) that giving, causing to give, or attempting to 
        give or cause to give advance notice of any inspection 
        to be conducted under this Act with the intention of 
        impeding, interfering with, or adversely affecting the 
        results of such inspection is unlawful pursuant to 
        section 110(e); and
          (2) the maximum penalties for a violation under such 
        subsection.

                               PENALTIES

  Sec. 110. (a)(1) The operator of a coal or other mine in 
which a violation occurs of a mandatory health or safety 
standard or who violates any other provisions of this Act, 
including any regulation promulgated under this Act, shall be 
assessed a civil penalty by the Secretary which penalty shall 
not be more than $50,000 for each such violation. Each 
occurrence of a violation of a mandatory health or safety 
standard may constitute a separate offense.

           *       *       *       *       *       *       *

  (4) If any person violates section 105(c), the Secretary 
shall propose, and the Commission shall assess, a civil penalty 
of not less than $10,000 or more than $100,000 for the first 
occurrence of such violation, and not less than $20,000 or more 
than $200,000 for any subsequent violation, during any 3-year 
period.
  [(4)] (5) Nothing in this subsection shall be construed to 
prevent an operator from obtaining a review, in accordance with 
section 106, of an order imposing a penalty described in this 
subsection. If a court, in making such review, sustains the 
order, the court shall apply at least the minimum penalties 
required under this subsection.
  (b)(1) * * *

           *       *       *       *       *       *       *

  (3) Notwithstanding any other provision of this Act, an 
operator of a coal or other mine that is in pattern status 
under section 104(e) and that fails to meet the performance 
benchmarks set forth by the Secretary under section 
104(e)(5)(A) during any performance review of the mine 
following the first performance review shall be assessed an 
increased civil penalty for any violation of this Act, 
including any mandatory health or safety standard or regulation 
promulgated under this Act. Such increased penalty shall be 
twice the amount that would otherwise be assessed for the 
violation under this Act, including the regulations promulgated 
under this Act, subject to the maximum civil penalty 
established for the violation under this Act. This paragraph 
shall apply to violations at such mine that occur during the 
time period after the operator fails to meet the performance 
benchmarks in this paragraph, and ending when the Secretary 
determines at a subsequent performance review that the mine 
meets the performance benchmarks under section 104(e)(5)(A).
  [(c) Whenever a corporate operator violates a mandatory 
health or safety standard or knowingly violates or fails or 
refuses to comply with any order issued under this Act or any 
order incorporated in a final decision issued under this Act, 
except an order incorporated in a decision issued under 
subsection (a) section 105(c), any director, officer, or agent 
of such corporation who knowingly authorized, ordered, or 
carried out such violation, failure, or refusal shall be 
subject to the same civil penalties, fines, and imprisonment 
that may be imposed upon a person under subsections (a) and 
(d).]
  (c) Civil and Criminal Liability of Officers, Directors, and 
Agents.--Whenever an operator violates a provision of this Act, 
including any mandatory health or safety standard or regulation 
promulgated under this Act, or knowingly violates or fails or 
refuses to comply with any order issued under this Act or any 
order incorporated in a final decision issued under this Act, 
any director, officer, or agent of such operator who knowingly 
authorized, ordered, or carried out such violation, failure, or 
refusal, or any policy or practice that resulted in such 
violation, failure, or refusal, shall be subject to the same 
civil penalties, fines, and imprisonment that may be imposed 
upon a person under this section.
  (d)(1) Any operator who [willfully] knowingly violates a 
mandatory health or safety standard, or knowingly violates or 
fails or refuses to comply with any order issued under section 
104 and section 107, or any order incorporated in a final 
decision issued under this title, except an order incorporated 
in a decision under subsection (a)(1) or section 105(c), shall, 
upon conviction, be punished [by a fine of not more than 
$250,000, or by imprisonment for not more than one year, or by 
both, except that if the conviction is for a violation 
committed after the first conviction of such operator under 
this Act, punishment shall be by a fine of not more than 
$500,000, or by imprisonment for not more than five years, or 
both.] as follows:
          (A) By a fine of not more than $250,000, or by 
        imprisonment for not more than 1 year, or both.
          (B) If the conviction is for a violation committed 
        after a previous conviction of such operator for a 
        violation of the same mandatory health or safety 
        standard, by a fine of not more than $1,000,000, or by 
        imprisonment for not more than 5 years, or both.
          (C) If the conviction is for a violation committed 
        after a previous conviction of such operator for a 
        violation of an order, by a fine of not more than 
        $1,000,000, or by imprisonment for not more than 5 
        years, or both.
          (D) If the operator's actions knowingly exposed 
        miners to a significant risk of serious injury or 
        illness or death, by a fine of not more than 
        $1,000,000, or by imprisonment for not more than 5 
        years, or both.
          (E) If the operator knowingly tampered with or 
        disabled a required safety device which exposed miners 
        to a significant risk of serious injury or illness or 
        death, or if the conviction is for a violation 
        described in subparagraph (D) committed after a 
        previous conviction of such operator for a such a 
        violation, by a fine of not more than $2,000,000, or by 
        imprisonment for not more than 10 years, or both.
  (2) Whoever knowingly takes any action that is directly or 
indirectly harmful to any person, including action that 
interferes with the lawful employment or livelihood of any 
person, because such person has provided an authorized 
representative of the Secretary, a State or local mine safety 
or health officer or official, or any other law enforcement 
officer with any information related to the existence of a 
health or safety violation or an unhealthful or unsafe 
condition, policy, or practice under this Act shall be fined 
under title 18, United States Code, imprisoned for not more 
than 10 years, or both.
  [(e) Unless otherwise authorized by this Act, any person who 
gives advance notice of any inspection to be conducted under 
this Act shall, upon conviction, be punished by a fine of not 
more than $1,000 or by imprisonment for not more than six 
months, or both.]
  (e) Unless otherwise authorized by this Act, any person that 
knowingly gives, causes to give, or attempts to give or cause 
to give, advance notice of any inspection conducted under this 
Act with the intention of impeding, interfering with, or 
adversely affecting the results of such inspection, shall be 
fined under title 18, United States Code, imprisoned for not 
more than 5 years, or both.

           *       *       *       *       *       *       *

  (i) The Commission shall have authority to assess all civil 
penalties provided in this Act. [In assessing civil monetary 
penalties, the Commission shall consider] In any review of a 
citation and proposed penalty assessment contested by an 
operator, the Commission shall assess not less than the penalty 
derived by using the same methodology (including any point 
system) prescribed in regulations under this Act, so as to 
ensure consistency in operator penalty assessments, except that 
the Commission may assess a penalty for less than the amount 
that would result from the utilization of such methodology if 
the Commission finds that there are extraordinary 
circumstances. If there is no such methodology prescribed for a 
citation or there are such extraordinary circumstances, the 
Commission shall assess the penalty by considering the 
operator's history of previous violations, the appropriateness 
of such penalty to the size of the business of the operator 
charged, whether the operator was negligent, the effect on the 
operator's ability to continue in business, the gravity of the 
violation, and the demonstrated good faith of the person 
charged in attempting to achieve rapid compliance after 
notification of a violation. In proposing civil penalties under 
this Act, the Secretary may rely upon a summary review of the 
information available to him and shall not be required to make 
findings of fact concerning the above factors.
  (j) Civil penalties owed under this Act shall be paid to the 
Secretary for deposit into the Treasury of the United States 
and shall accrue to the United States and may be recovered in a 
civil action in the name of the United States brought in the 
United States district court for the district where the 
violation occurred or where the operator has its principal 
office. [Interest at the rate of 8 percent per annum shall be 
charged against a person on any final order of the Commission, 
or the court. Interest shall begin to accrue 30 days after the 
issuance of such order.] Pre-final order interest on such 
penalties shall begin to accrue on the date the operator 
contests a citation issued under this Act, including any 
mandatory health or safety standard or regulation promulgated 
under this Act, and shall end upon the issuance of the final 
order. Such pre-final order interest shall be calculated at the 
current underpayment rate determined by the Secretary of the 
Treasury pursuant to section 6621 of the Internal Revenue Code 
of 1986, and shall be compounded daily. Post-final order 
interest shall begin to accrue 30 days after the date a final 
order of the Commission or the court is issued, and shall be 
charged at the rate of 8 percent per annum.

           *       *       *       *       *       *       *

  (l) Ensuring Payment of Penalties.--
          (1) Delinquent payment letter.--If the operator of a 
        coal or other mine fails to pay any civil penalty 
        assessment that has become a final order of the 
        Commission or a court within 45 days after such 
        assessment became a final order, the Secretary shall 
        send the operator a letter advising the operator of the 
        consequences under this subsection of such failure to 
        pay. The letter shall also advise the operator of the 
        opportunity to enter into or modify a payment plan with 
        the Secretary based upon a demonstrated inability to 
        pay, the procedure for entering into such plan, and the 
        consequences of not entering into or not complying with 
        such plan.
          (2) Withdrawal orders following failure to pay.--If 
        an operator that receives a letter under paragraph (1) 
        has not paid the assessment by the date that is 180 
        days after such assessment became a final order and has 
        not entered into a payment plan with the Secretary, the 
        Secretary shall issue an order requiring such operator 
        to cause all persons, except those referred to in 
        section 104(c), to be withdrawn from, and to be 
        prohibited from entering, the mine that is covered by 
        the final order described in paragraph (1), until the 
        operator pays such assessment in full (including 
        interest and administrative costs) or enters into a 
        payment plan with the Secretary. If such operator 
        enters into a payment plan with the Secretary and at 
        any time fails to comply with the terms specified in 
        such payment plan, the Secretary shall issue an order 
        requiring such operator to cause all persons, except 
        those referred to in section 104(c), to be withdrawn 
        from the mine that is covered by such final order, and 
        to be prohibited from entering such mine, until the 
        operator rectifies the noncompliance with the payment 
        plan in the manner specified in such payment plan.
  [(l)] (m) The provisions of this section shall not be 
applicable with respect to title IV of this Act.

                         [ENTITLEMENT OF MINERS

  [Sec. 111. If a coal or other mine or area of such mine is 
closed by an order issued under section 103, section 104, or 
section 107, all miners working during the shift when such 
order was issued who are idled by such order shall be entitled, 
regardless of the result of any review of such order, to full 
compensation by the operator at their regular rates of pay for 
the period they are idled, but for not more than the balance of 
such shift. If such order is not terminated prior to the next 
working shift, all miners on that shift who are idled by such 
order shall be entitled to full compensation by the operator at 
their regular rates of pay for the period they are idled, but 
for not more than four hours of such shift. If a coal or other 
mine or area of such mine is closed by an order issued under 
section 104 or section 107 of this title for a failure of the 
operator to comply with any mandatory health or safety 
standards, all miners who are idled due to such order shall be 
fully compensated after all interested parties are given an 
opportunity for a public hearing, which shall be expedited in 
such cases, and after such order is final, by the operator for 
lost time at their regular rates of pay for such time as the 
miners are idled by such closing, or for one week, whichever is 
the lesser. Whenever an operator violates or fails or refuses 
to comply with any order issued under section 103, section 104, 
or section 107 of this Act, all miners employed at the affected 
mine who would have been withdrawn from, or prevented from 
entering, such mine or area thereof as a result of such order 
shall be entitled to full compensation by the operator at their 
regular rates of pay, in addition to pay received for work 
performed after such order was issued, for the period beginning 
when such order was issued and ending when such order is 
complied with, vacated, or terminated. The Commission shall 
have authority to order compensation due under this section 
upon the filing of a complaint by a miner or his representative 
and after opportunity for hearing subject to section 554 of 
title 5, United States Code.]

SEC. 111. ENTITLEMENT OF MINERS.

  (a) Protection From Loss of Pay.--
          (1) Withdrawal orders.--If a coal or other mine or 
        area of such mine is closed by an order issued under 
        section 103, 104, 107, 108, or 110, all miners working 
        during the shift when such order was issued who are 
        idled by such order shall be entitled, regardless of 
        the result of any review of such order, to full 
        compensation by the operator at their regular rates of 
        pay for the period they are idled, but for not more 
        than the balance of such shift. If such order is not 
        terminated prior to the next working shift, all miners 
        on that shift who are idled by such order shall be 
        entitled to full compensation by the operator at their 
        regular rates of pay for the period they are idled, but 
        for not more than four hours of such shift. If a coal 
        or other mine or area of such mine is closed by an 
        order issued under section 104, 107 (in connection with 
        a citation), 108, or 110, all miners who are idled by 
        such order shall be entitled, regardless of the result 
        of any review of such order, to full compensation by 
        the operator at their regular rates of pay and in 
        accordance with their regular schedules of pay for the 
        entire period for which they are idled, not to exceed 
        60 days.
          (2) Closure in advance of order.--If the Secretary 
        finds that such mine or such area of a mine was closed 
        by the operator in anticipation of the issuance of such 
        an order, all miners who are idled by such closure 
        shall be entitled to full compensation by the operator 
        at their regular rates of pay and in accordance with 
        their regular schedules of pay, from the time of such 
        closure until such time as the Secretary authorizes 
        reopening of such mine or such area of the mine, not to 
        exceed 60 days, except where an operator promptly 
        withdraws miners upon discovery of a hazard, and 
        notifies the Secretary where required, and within the 
        prescribed time period.
          (3) Refusal to comply.--Whenever an operator violates 
        or fails or refuses to comply with any order issued 
        under section 103, 104, 107, 108, or 110, all miners 
        employed at the affected mine who would have been 
        withdrawn from, or prevented from entering, such mine 
        or area thereof as a result of such order shall be 
        entitled to full compensation by the operator at their 
        regular rates of pay, in addition to pay received for 
        work performed after such order was issued, for the 
        period beginning when such order was issued and ending 
        when such order is complied with, vacated, or 
        terminated.
  (b) Enforcement.--
          (1) Commission orders.--The Commission shall have 
        authority to order compensation due under this section 
        upon the filing of a complaint by a miner or his 
        representative and after opportunity for hearing 
        subject to section 554 of title 5, United States Code. 
        Whenever the Commission issues an order sustaining the 
        complaint under this subsection in whole or in part, 
        the Commission shall award the complainant reasonable 
        attorneys' fees and costs.
          (2) Failure to pay compensation due.--Consistent with 
        the authority of the Secretary to order miners 
        withdrawn from a mine under this Act, the Secretary 
        shall order a mine that has been subject to a 
        withdrawal order under section 103, 104, 107, 108, or 
        110, and has reopened, to be closed again if 
        compensation in accordance with the provisions of this 
        section is not paid by the end of the next regularly 
        scheduled payroll period following the lifting of a 
        withdrawal order.
  (c) Expedited Review.--If an order is issued which results in 
payments to miners under subsection (a), the operators shall 
have the right to an expedited review before the Commission 
using timelines and procedures established pursuant to section 
316(b)(2)(G)(ii).

           *       *       *       *       *       *       *


                  MANDATORY HEALTH AND SAFETY TRAINING

  Sec. 115. (a) Each operator of a coal or other mine shall 
have a health and safety training program which shall be 
approved by the Secretary. The Secretary shall promulgate 
regulations with respect to such health and safety training 
programs not more than 180 days after the effective date of the 
Federal Mine Safety and Health Amendments Act of 1977. Each 
training program approved by the Secretary shall provide as a 
minimum that--
          (1) * * *

           *       *       *       *       *       *       *

          [(3) all miners shall receive no less than eight 
        hours of refresher training no less frequently than 
        once each 12 months, except that miners already 
        employed on the effective date of the Federal Mine 
        Safety and Health Amendments Act of 1977 shall receive 
        this refresher training no more than 90 days after the 
        date of approval of the training plan required by this 
        section;]
          (3) all miners shall receive not less than 9 hours of 
        refresher training not less frequently than once every 
        12 months, and such training shall include one hour of 
        training on the statutory rights and responsibilities 
        of miners and their representatives under this Act and 
        other applicable Federal and State law, pursuant to a 
        program of instruction developed by the Secretary and 
        delivered by an employee of the Administration or by a 
        trainer approved by the Administration that is a party 
        independent from the operator;

           *       *       *       *       *       *       *

  (c) Any health and safety training program of instruction 
provided under this section shall include distribution to 
miners of information regarding miners' rights under the Act, 
as well as a toll-free hotline telephone number, which the 
Secretary shall maintain to receive complaints from miners and 
the public regarding hazardous conditions, discrimination, 
safety or health violations, or other mine safety or health 
concerns. Information regarding the hotline shall be provided 
in a portable, convenient format, such as a durable wallet 
card, to enable miners to keep the information on their person.
  [(c)] (d) Upon completion of each training program, each 
operator shall certify, on a form approved by the Secretary, 
that the miner has received the specified training in each 
subject area of the approved health and safety training plan. A 
certificate for each miner shall be maintained by the operator, 
and shall be available for inspection at the mine site, and a 
copy thereof shall be given to each miner at the completion of 
such training. When a miner leaves the operator's employ, he 
shall be entitled to a copy of his health and safety training 
certificates. False certification by an operator that training 
was given shall be punishable under section 110 (a) and (f); 
and each health and safety training certificate shall indicate 
on its face, in bold letters, printed in a conspicuous manner 
the fact that such false certification is so punishable.
  (e) Authority To Mandate Additional Training.--
          (1) In general.--The Secretary is authorized to issue 
        an order requiring that an operator of a coal or other 
        mine provide additional training beyond what is 
        otherwise required by law, and specifying the time 
        within which such training shall be provided, if the 
        Secretary finds that--
                  (A)(i) a serious or fatal accident has 
                occurred at such mine; or
                  (ii) such mine has experienced accident and 
                injury rates, citations for violations of this 
                Act (including mandatory health or safety 
                standards or regulations promulgated under this 
                Act), citations for significant and substantial 
                violations, or withdrawal orders issued under 
                this Act at a rate above the average for mines 
                of similar size and type; and
                  (B) additional training would benefit the 
                health and safety of miners at the mine.
          (2) Withdrawal order.--If the operator fails to 
        provide training ordered under paragraph (1) within the 
        specified time, the Secretary shall issue an order 
        requiring such operator to cause all affected persons, 
        except those persons referred to in section 104(c), to 
        be withdrawn, and to be prohibited from entering such 
        mine, until such operator has provided such training.
  [(d)] (f) The Secretary shall promulgate appropriate 
standards for safety and health training for coal or other mine 
construction workers.
  [(e)] (g)(1) * * *

           *       *       *       *       *       *       *


SEC. 117. UNDERGROUND COAL MINER EMPLOYMENT STANDARD FOR MINES PLACED 
                    IN PATTERN STATUS.

  (a) In General.-- For purposes of ensuring miners' health and 
safety and miners' right to raise concerns thereof, when an 
underground coal mine is placed in pattern status pursuant to 
section 104(e), and for 3 years after such placement, the 
operator of such mine may not discharge or constructively 
discharge a miner who is paid on an hourly basis and employed 
at such underground coal mine without reasonable job-related 
grounds based on a failure to satisfactorily perform job 
duties, including compliance with this Act and with mandatory 
health and safety standards or other regulations issued under 
this Act, or other legitimate business reason, where the miner 
has completed the employer's probationary period, not to exceed 
6 months.
  (b) Cause of Action.--A miner aggrieved by a violation of 
subsection (a) may file a complaint in Federal district court 
in the district where the mine is located within 1 year of such 
violation.
  (c) Remedies.--In an action under subsection (b), for any 
prevailing miner the court shall take affirmative action to 
further the purposes of the Act, which may include 
reinstatement with backpay and compensatory damages. Reasonable 
attorneys' fees and costs shall be awarded to any prevailing 
miner under this section.
  (d) Pre-Dispute Waiver Prohibited.--A miner's right to a 
cause of action under this section may not be waived with 
respect to disputes that have not arisen as of the time of the 
waiver.
  (e) Construction.--Nothing in this section shall be construed 
to limit the availability of rights and remedies of miners 
under any other State or Federal law or a collective bargaining 
agreement.

SEC. 118. CERTIFICATION OF PERSONNEL.

  (a) Certification Required.--Any person who is authorized or 
designated by the operator of a coal or other mine to perform 
any duties or provide any training that this Act, including a 
mandatory health or safety standard or regulation promulgated 
pursuant to this Act, requires to be performed or provided by a 
certified, registered, qualified, or otherwise approved person, 
shall be permitted to perform such duties or provide such 
training only if such person has a current certification, 
registration, qualification, or approval to perform such duties 
or provide such training consistent with the requirements of 
this section.
  (b) Establishment of Certification Requirements and 
Procedures.--
          (1) In general.--Not later than 1 year after the date 
        of enactment of the Robert C. Byrd Miner Safety and 
        Health Act of 2010, the Secretary shall issue mandatory 
        standards to establish--
                  (A) requirements for such certification, 
                registration, qualification, or other approval, 
                including the experience, examinations, and 
                references that may be required as appropriate;
                  (B) time limits for such certifications and 
                procedures for obtaining and renewing such 
                certification, registration, qualification, or 
                other approval; and
                  (C) procedures and criteria for revoking such 
                certification, registration, qualification, or 
                other approval, including procedures that 
                ensure that the Secretary (or a State agency, 
                as applicable) responds to requests for 
                revocation and that the names of individuals 
                whose certification or other approval has been 
                revoked are provided to and maintained by the 
                Secretary, and are made available to 
                appropriate State agencies through an 
                electronic database.
          (2) Coordination with states.--In developing such 
        standards, the Secretary shall consult with States that 
        have miner certification programs to ensure effective 
        coordination with existing State standards and 
        requirements for certification. The standards required 
        under paragraph (1) shall provide that the 
        certification, registration, qualification, or other 
        approval of the State in which the coal or other mine 
        is located satisfies the requirement of subsection (a) 
        if the State's program of certification, registration, 
        qualification, or other approval is no less stringent 
        than the standards established by the Secretary under 
        paragraph (1).
  (c) Operator Fees for Certification.--
          (1) Assessment and collection.--Beginning 180 days 
        after the date of enactment of the Robert C. Byrd Miner 
        Safety and Health Act of 2010, the Secretary shall 
        assess and collect fees, in accordance with this 
        subsection, from each operator for each person 
        certified under this section. Fees shall be assessed 
        and collected in amounts determined by the Secretary as 
        necessary to fund the certification programs 
        established under this section.
          (2) Use.--Amounts collected as provided in paragraph 
        (1) shall only be available to the Secretary, as 
        provided in paragraph (3), for making expenditures to 
        carry out the certification programs established under 
        this subsection.
          (3) Authorization of appropriations.--In addition to 
        funds authorized to be appropriated under section 114, 
        there is authorized to be appropriated to the Assistant 
        Secretary for Mine Safety and Health for each fiscal 
        year in which fees are collected under paragraph (1) an 
        amount equal to the total amount of fees collected 
        under paragraph (1) during that fiscal year. Such 
        amounts are authorized to remain available until 
        expended. If on the first day of a fiscal year a 
        regular appropriation to the Commission has not been 
        enacted, the Commission shall continue to collect fees 
        (as offsetting collections) under this subsection at 
        the rate in effect during the preceding fiscal year, 
        until 5 days after the date such regular appropriation 
        is enacted.
          (4) Collecting and crediting of fees.--Fees 
        authorized and collected under this subsection shall be 
        deposited and credited as offsetting collections to the 
        account providing appropriations to the Mine Safety and 
        Health Administration and shall not be collected for 
        any fiscal year except to the extent and in the amount 
        provided in advance in appropriation Acts.
  (d) Citation; Withdrawal Order.--Any operator who permits a 
person to perform any of the health or safety related functions 
described in subsection (a) without a current certification 
which meets the requirements of this section shall be 
considered to have committed an unwarrantable failure under 
section 104(d)(1), and the Secretary shall issue an order 
requiring that the miner be withdrawn or reassigned to duties 
that do not require such certification.

SEC. 119. APPLICABILITY OF CERTAIN PROVISIONS TO CERTAIN MINES.

  (a) Rule of Construction.--With respect to the mines 
described in subsection (b), this Act as in effect on the date 
before the date of enactment of the Robert C. Byrd Miner Safety 
and Health Act of 2010, shall continue to apply to such mines 
as then in effect.
  (b) Applicable Mines.--
          (1) In general.--The mines referred to in subsection 
        (a) are--
                  (A) surface mines, except for surface 
                facilities or impoundments physically connected 
                to--
                          (i) underground coal mines; or
                          (ii) other underground mines which 
                        are gassy mines; and
                  (B) underground mines which are neither coal 
                mines nor gassy mines.
          (2) Definition.--As used in paragraph (1), the term 
        ``gassy mine'' means a mine, tunnel, or other 
        underground workings in which a flammable mixture has 
        been ignited, or has been found with a permissible 
        flame safety lamp, or has been determined by air 
        analysis to contain 0.25 percent or more (by volume) of 
        methane in any open workings when tested at a point not 
        less than 12 inches from the roof, face of rib.
  (c) Savings Provision.--Nothing in this section shall impact 
the authority of the Secretary to promulgate or modify 
regulations pursuant to the authority under any such provisions 
as in effect on the date before the date of enactment of the 
Robert C. Byrd Miner Safety and Health Act of 2010, or shall be 
construed to alter or modify precedent with regards to the 
Commission or courts.

TITLE II--INTERIM MANDATORY HEALTH STANDARDS

           *       *       *       *       *       *       *


                DUST STANDARD AND RESPIRATORY EQUIPMENT

  Sec. 202. (a) * * *

           *       *       *       *       *       *       *

  (d) Beginning six months after the operative date of this 
title and from time to time thereafter, the Secretary [of 
Health, Education, and Welfare] shall establish, in accordance 
with the provisions of section 101 of this Act, a schedule 
reducing the average concentration of respirable dust in the 
mine atmosphere during each shift to which each miner in the 
active workings is exposed below the levels established in this 
section to a level of personal exposure which will prevent new 
incidences of respiratory disease and the further development 
of such disease in any person. [Such schedule shall specify the 
minimum time necessary to achieve such levels taking into 
consideration present and future advancements in technology to 
reach these levels.] Not later than 2 years after the date of 
enactment of the Robert C. Byrd Miner Safety and Health Act of 
2010, the Secretary shall promulgate final regulations that 
require operators, beginning on the date such regulations are 
issued, to provide coal miners with the maximum feasible 
protection from respirable dust, including coal and silica 
dust, that is achievable through environmental controls, and 
that meet the applicable standards.

           *       *       *       *       *       *       *


  TITLE III--INTERIM MANDATORY SAFETY STANDARDS FOR UNDERGROUND COAL 
MINES

           *       *       *       *       *       *       *


                              VENTILATION

  Sec. 303. (a) * * *

           *       *       *       *       *       *       *

  (d)(1) * * *

           *       *       *       *       *       *       *

  (3)(A) Not later than 30 days after the issuance of the 
interim final rules promulgated under subparagraph (C), each 
operator of an underground coal mine shall implement a 
communication program at the underground coal mine to ensure 
that each miner is orally briefed on and made aware of, prior 
to traveling to or arriving at the miner's work area and 
commencing the miner's assigned tasks--
          (i) any conditions that are hazardous, or that 
        violate a mandatory health or safety standard or a plan 
        approved under this Act, where the miner is expected to 
        work or travel; and
          (ii) the general conditions of that miner's assigned 
        working section or other area where the miner is 
        expected to work or travel.
  (B) Not later than 180 days after the date of enactment of 
the Robert C. Byrd Miner Safety and Health Act of 2010, the 
Secretary shall promulgate interim final rules implementing the 
requirements of subparagraph (A). The Secretary shall issue a 
final rule not later than 2 years after such date.

           *       *       *       *       *       *       *


                 COMBUSTIBLE MATERIALS AND ROCK DUSTING

  Sec. 304. (a) * * *

           *       *       *       *       *       *       *

  (d) [Where rock] Rock Dust.--
          (1) In general.--Where rock dust is required to be 
        applied, it shall be distributed upon the top, floor, 
        and sides of all underground areas of a coal mine and 
        maintained in such quantities that the incombustible 
        content of the combined coal dust, rock dust, and other 
        dust shall be not less than [65 per centum, but the 
        incombustible content in the return aircourses shall be 
        no less than 80 per centum. Where methane is present in 
        any ventilating current, the per centum of 
        incombustible content of such combined dusts shall be 
        increased 1.0 and 0.4 per centum for each 0.1 per 
        centum of methane where 65 and 80 per centum, 
        respectively, of incombustibles are required.] 80 
        percent. Where methane is present in any ventilating 
        current, the percentage of incombustible content of 
        such combined dusts shall be increased 0.4 percent for 
        each 0.1 percent of methane.
          (2) Methods of measurement.--
                  (A) In general.--Each operator of an 
                underground coal mine shall take accurate and 
                representative samples which shall measure the 
                total incombustible content of combined coal 
                dust, rock dust, and other dust in such mine to 
                ensure that the coal dust is kept below 
                explosive levels through the appropriate 
                application of rock dust.
                  (B) Direct reading monitors.--By the later of 
                June 15, 2011, or the date that is 30 days 
                after the Secretary of Health and Human 
                Services has certified in writing that direct 
                reading monitors are commercially available to 
                measure total incombustible content in samples 
                of combined coal dust, rock dust, and other 
                dust and the Department of Labor has approved 
                such monitors for use in underground coal 
                mines, the Secretary shall require operators to 
                take such dust samples using direct reading 
                monitors.
                  (C) Regulations.--The Secretary shall, not 
                later than 180 days after the date of enactment 
                of the Robert C. Byrd Miner Safety and Health 
                Act of 2010, promulgate an interim final rule 
                that prescribes methods for operator sampling 
                of total incombustible content in samples of 
                combined coal dust, rock dust, and other dust 
                using direct reading monitors and includes 
                requirements for locations, methods, and 
                intervals for mandatory operator sampling.
                  (D) Recommendations.--Not later than 1 year 
                after the date of enactment of the Robert C. 
                Byrd Miner Safety and Health Act of 2010, the 
                Secretary of Health and Human Services shall, 
                based upon the latest research, recommend to 
                the Secretary of Labor any revisions to the 
                mandatory operator sampling locations, methods, 
                and intervals included in the interim final 
                rule described in subparagraph (B) that may be 
                warranted in light of such research.
          (3) Limitation.--Until a final rule is issued by the 
        Secretary under section 502(b)(2) of the Robert C. Byrd 
        Miner Safety and Health Act of 2010, any measurement 
        taken by a direct reading monitor described in 
        paragraph (2) shall not be admissible to establish a 
        violation in an enforcement action under this Act.

           *       *       *       *       *       *       *


                             MISCELLANEOUS

  Sec. 317. (a) * * *

           *       *       *       *       *       *       *

  (u) Atmospheric Monitoring Systems.--
          (1) Niosh recommendations.--Not later than 1 year 
        after the date of enactment of the Robert C. Byrd Miner 
        Safety and Health Act of 2010, the Director of the 
        National Institute for Occupational Safety and Health, 
        acting through the Office of Mine Safety and Health 
        Research, in consultation, including through technical 
        working groups, with operators, vendors, State mine 
        safety agencies, the Secretary, and labor 
        representatives of miners, shall issue recommendations 
        to the Secretary regarding--
                  (A) how to ensure that atmospheric monitoring 
                systems are utilized in the underground coal 
                mining industry to maximize the health and 
                safety of underground coal miners;
                  (B) the implementation of redundant systems, 
                such as the bundle tubing system, that can 
                continuously monitor the mine atmosphere 
                following incidents such as fires, explosions, 
                entrapments, and inundations; and
                  (C) other technologies available to conduct 
                continuous atmospheric monitoring.
          (2) Atmospheric monitoring system regulations.--Not 
        later than 1 year following the receipt of the 
        recommendations described in paragraph (1), the 
        Secretary shall promulgate regulations requiring that 
        each operator of an underground coal mine install 
        atmospheric monitoring systems, consistent with such 
        recommendations, that--
                  (A) protect miners where the miners normally 
                work and travel;
                  (B) provide real-time information regarding 
                methane and carbon monoxide levels, and airflow 
                direction, as appropriate, with sensing, 
                annunciating, and recording capabilities; and
                  (C) can, to the maximum extent practicable, 
                withstand explosions and fires.

                              DEFINITIONS

  Sec. 318. For the purpose of this title and title II of this 
Act, the term--
          [(a) ``certified'' or ``registered'' as applied to 
        any person means a person certified or registered by 
        the State in which the coal mine is located to perform 
        duties prescribed by such titles, except that, in a 
        State where no program of certification or registration 
        is provided or where the program does not meet at least 
        minimum Federal standards established by the Secretary, 
        such certification or registration shall be the 
        Secretary;
          [(b) ``qualified'' person means, as the context 
        requires,
                  [(1) an individual deemed qualified by the 
                Secretary and designated by the operator to 
                make tests and examinations required by this 
                Act; and
                  [(2) an individual deemed, in accordance with 
                minimum requirements to be established by the 
                Secretary, qualified by training, education, 
                and experience, to perform electrical work, to 
                maintain electrical equipment, and to conduct 
                examinations and tests of all electrical 
                equipment;]
          [(c)] (1) ``permissible'' as applied to--
                  [(1)] (A) equipment used in the operation of 
                a coal mine, means equipment, other than 
                permissible electric face equipment, to which 
                an approval plate, label, or other device is 
                attached as authorized by the Secretary and 
                which meets specifications which are prescribed 
                by the Secretary for the construction and 
                maintenance of such equipment and are designed 
                to assure that such equipment will not cause a 
                mine explosion or a mine fire,
                  [(2)] (B) explosives, shot firing units, or 
                blasting devices used in such mine, means 
                explosives, shot firing units, or blasting 
                devices which meet specifications which are 
                prescribed by the Secretary, and
                  [(3)] (C) the manner of use of equipment or 
                explosives, shot firing units, and blasting 
                devices, means the manner of use prescribed by 
                the Secretary;
          [(d)] (2) ``rock dust'' means pulverized limestone, 
        dolomite, gypsum, anhydrite, shale, adobe, or other 
        inert material, preferably light colored, 100 per 
        centum of which will pass through a sieve having twenty 
        meshes per linear inch and 70 per centum or more of 
        which will pass through a sieve having two hundred 
        meshes per linear inch; the particles of which when 
        wetted and dried will not cohere to form a cake which 
        will not be dispersed into separate particles by a 
        light blast of air; and which does not contain more 
        than 5 per centum of combustible matter or more than a 
        total of 4 per centum of free and combined silica 
        (SiO2), or, where the Secretary finds that 
        such silica concentrations are not available, which 
        does not contain more than 5 per centum of free and 
        combined silica;
          [(e)] (3) ``anthracite'' means coals with a volatile 
        ratio equal to 0.12 or less;
          [(f)] (4) ``volatile ratio'' means volatile matter 
        content divided by the volatile matter plus the fixed 
        carbon;
          [(g)(1)] (5)(A) ``working face'' means any place in a 
        coal mine in which work of extracting coal from its 
        natural deposit in the earth is performed during the 
        mining cycle,
                  [(2)] (B) ``working place'' means the area of 
                a coal mine inby the last open crosscut,
                  [(3)] (C) ``working section'' means all areas 
                of the coal mine from the loading point of the 
                section to and including the working faces,
                  [(4)] (D) ``active workings'' means any place 
                in a coal mine where miners are normally 
                required to work or travel;
          [(h)] (6) ``abandoned areas'' means sections, panels, 
        and other areas that are not ventilated and examined in 
        the manner required for working places under section 
        303 of this title;
          [(i)] (7) ``permissible' as applied to electric face 
        equipment means all electrically operated equipment 
        taken into or used inby the last open crosscut of an 
        entry or a room of any coal mine the electrical parts 
        of which, including, but not limited to, associated 
        electrical equipment, components, and accessories, are 
        designed, constructed, and installed, in accordance 
        with the specifications of the Secretary, to assure 
        that such equipment will not cause a mine explosion or 
        mine fire, and the other features of which are designed 
        and constructed, in accordance with the specifications 
        of the Secretary, to prevent, to the greatest extent 
        possible, other accidents in the use of such equipment; 
        and the regulations of the Secretary or the Director of 
        the Bureau of Mines in effect on the operative date of 
        this title relating to the requirements for 
        investigation, testing, approval, certification, and 
        acceptance of such equipment as permissible shall 
        continue in effect until modified or superseded by the 
        Secretary, except that the Secretary shall provide 
        procedures, including, where feasible, testing, 
        approval, certification, and acceptance in the field by 
        an authorized representative of the Secretary, to 
        faciliate compliance by an operator with the 
        requirements of section 305(a) of this title within the 
        periods prescribed therein:
          [(j)] (8) ``low voltage'' means by to and including 
        660 volts: ``medium voltage'' means voltages from 661 
        to 1,000 volts; and ``high voltage'' means more than 
        1,000 volts;

           *       *       *       *       *       *       *


TITLE V--ADMINISTRATION

           *       *       *       *       *       *       *


                          ASSISTANCE TO STATES

  Sec. 503. (a) The Secretary[, in coordination with the 
Secretary of Health, Education, and Welfare and the Secretary 
of the Interior,] is authorized to make grants in accordance 
with an application approved under this section to any State in 
which coal or other mining takes place--
          (1) * * *
          (2) to improve State workmen's compensation and 
        occupational disease laws and programs related to coal 
        or other mine employment; [and]
          (3) to promote Federal-State coordination and 
        cooperation in improving the health and safety 
        conditions in the coal or other mines[.]; and
          (4) to assist such State in developing and 
        implementing any certification program for coal or 
        other mines required for compliance with section 118.

           *       *       *       *       *       *       *

  (h) There is authorized to be appropriated [$3,000,000 for 
fiscal year 1970, and $10,000,000 annually in each succeeding 
fiscal year] $20,000,000 for each fiscal year to carry out the 
provisions of this section, which shall remain available until 
expended. The Secretary shall provide for an equitable 
distribution of sums appropriated for grants under this section 
to the States where there is an approved application, except 
that no less than one-half of such sum shall be allocated to 
coal-producing States.

           *       *       *       *       *       *       *


                                REPORTS

  Sec. 511. (a) Within one hundred and twenty days following 
the convening of each session of Congress the Secretary shall 
submit through the President to the Congress and to the Office 
of Science and Technology an annual report upon the subject 
matter of this Act, the progress concerning the achievement of 
its purposes, the needs and requirements in the field of coal 
or other mine health and safety, the amount and status of each 
loan made pursuant to this Act, a description and the 
anticipated cost of each project and program he has undertaken 
under sections 301(b) and 501, the status of implementation of 
recommendations from each independent investigation panel under 
section 103(b) received in the preceding 5 years and any other 
relevant information, including any recommendations he deems 
appropriate.

           *       *       *       *       *       *       *

                              ----------                              


                        BLACK LUNG BENEFITS ACT

TITLE IV--BLACK LUNG BENEFITS

           *       *       *       *       *       *       *


Part C--Claims for Benefits After December 31, 1973

           *       *       *       *       *       *       *


SEC. 435. MEDICAL REPORTS.

  In any claim for benefits for a miner under this title, an 
operator that requires a miner to submit to a medical 
examination regarding the miner's respiratory or pulmonary 
condition shall, not later than 14 days after the miner has 
been examined, deliver to the claimant a complete copy of the 
examining physician's report. The examining physician's report 
shall be in writing and shall set out in detail the examiner's 
findings, including any diagnoses and conclusions and the 
results of any diagnostic imaging techniques and tests that 
were performed on the miner.

           *       *       *       *       *       *       *

                              ----------                              


OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970

           *       *       *       *       *       *       *


SEC. 9A. VICTIMS' RIGHTS.

  (a) Rights Before the Secretary.--A victim or the 
representative of a victim, shall be afforded the right, with 
respect to an inspection or investigation conducted under 
section 8 to--
          (1) meet with the Secretary regarding the inspection 
        or investigation conducted under such section before 
        the Secretary's decision to issue a citation or take no 
        action;
          (2) receive, at no cost, a copy of any citation or 
        report, issued as a result of such inspection or 
        investigation, at the same time as the employer 
        receives such citation or report;
          (3) be informed of any notice of contest or addition 
        of parties to the proceedings filed under section 
        10(c); and
          (4) be provided notification of the date and time or 
        any proceedings, service of pleadings, and other 
        relevant documents, and an explanation of the rights of 
        the employer, employee and employee representative, and 
        victim to participate in proceedings conducted under 
        section 10(c).
  (b) Rights Before the Commission.--Upon request, a victim or 
representative of a victim shall be afforded the right with 
respect to a work-related bodily injury or death to--
          (1) be notified of the time and date of any 
        proceeding before the Commission;
          (2) receive pleadings and any decisions relating to 
        the proceedings; and
          (3) be provided an opportunity to appear and make a 
        statement in accordance with the rules prescribed by 
        the Commission.
  (c) Modification of Citation.--Before entering into an 
agreement to withdraw or modify a citation issued as a result 
of an inspection or investigation of an incident under section 
8, the Secretary shall notify a victim or representative of a 
victim and provide the victim or representative of a victim 
with an opportunity to appear and make a statement before the 
parties conducting settlement negotiations. In lieu of an 
appearance, the victim or representative of the victim may 
elect to submit a letter to the Secretary and the parties.
  (d) Secretary Procedures.--The Secretary shall establish 
procedures--
          (1) to inform victims of their rights under this 
        section; and
          (2) for the informal review of any claim of a denial 
        of such a right.
  (e) Commission Procedures and Considerations.--The Commission 
shall--
          (1) establish procedures relating to the rights of 
        victims to be heard in proceedings before the 
        Commission; and
          (2) in rendering any decision, provide due 
        consideration to any statement or information provided 
        by any victim before the Commission.
  (f) Family Liaisons.--The Secretary shall designate at least 
1 employee at each area office of the Occupational Safety and 
Health Administration to serve as a family liaison to--
          (1) keep victims informed of the status of 
        investigations, enforcement actions, and settlement 
        negotiations; and
          (2) assist victims in asserting their rights under 
        this section.
  (g) Definition.--In this section, the term ``victim'' means--
          (1) an employee, including a former employee, who has 
        sustained a work-related injury or illness that is the 
        subject of an inspection or investigation conducted 
        under section 8; or
          (2) a family member (as further defined by the 
        Secretary) of a victim described in paragraph (1), if--
                  (A) the victim dies as a result of a incident 
                that is the subject of an inspection or 
                investigation conducted under section 8; or
                  (B) the victim sustains a work-related injury 
                or illness that is the subject of an inspection 
                or investigation conducted under section 8, and 
                the victim because of incapacity cannot 
                reasonably exercise the rights under this 
                section.

                       PROCEDURE FOR ENFORCEMENT

  Sec. 10. (a) * * *

           *       *       *       *       *       *       *

  (d) Correction of Serious, Willful, or Repeated Violations 
Pending Contest and Procedures for a Stay.--
          (1) Period permitted for correction of serious, 
        willful, or repeated violations.--For each violation 
        which the Secretary designates as serious, willful, or 
        repeated, the period permitted for the correction of 
        the violation shall begin to run upon receipt of the 
        citation.
          (2) Filing of a motion of contest.--The filing of a 
        notice of contest by an employer--
                  (A) shall not operate as a stay of the period 
                for correction of a violation designated as 
                serious, willful, or repeated; and
                  (B) may operate as a stay of the period for 
                correction of a violation not designated by the 
                Secretary as serious, willful, or repeated.
          (3) Criteria and rules of procedure for stays.--
                  (A) Motion for a stay.--An employer that 
                receives a citation alleging a violation 
                designated as serious, willful, or repeated and 
                that files a notice of contest to the citation 
                asserting that the time set for abatement of 
                the alleged violation is unreasonable or 
                challenging the existence of the alleged 
                violation may file with the Commission a motion 
                to stay the period for the abatement of the 
                violation.
                  (B) Criteria.--In determining whether a stay 
                should be issued on the basis of a motion filed 
                under subparagraph (A), the Commission may 
                grant a stay only if the employer has 
                demonstrated--
                          (i) a substantial likelihood of 
                        success on the areas contested under 
                        subparagraph (A); and
                          (ii) that a stay will not adversely 
                        affect the health and safety of 
                        workers.
                  (C) Rules of procedure.--The Commission shall 
                develop rules of procedure for conducting a 
                hearing on a motion filed under subparagraph 
                (A) on an expedited basis. At a minimum, such 
                rules shall provide:
                          (i) That a hearing before an 
                        administrative law judge shall occur 
                        not later than 15 days following the 
                        filing of the motion for a stay (unless 
                        extended at the request of the 
                        employer), and shall provide for a 
                        decision on the motion not later than 
                        15 days following the hearing (unless 
                        extended at the request of the 
                        employer).
                          (ii) That a decision of an 
                        administrative law judge on a motion 
                        for stay is rendered on a timely basis.
                          (iii) That if a party is aggrieved by 
                        a decision issued by an administrative 
                        law judge regarding the stay, such 
                        party has the right to file an 
                        objection with the Commission not later 
                        than 5 days after receipt of the 
                        administrative law judge's decision. 
                        Within 10 days after receipt of the 
                        objection, a Commissioner, if a quorum 
                        is seated pursuant to section 12(f), 
                        shall decide whether to grant review of 
                        the objection. If, within 10 days after 
                        receipt of the objection, no decision 
                        is made on whether to review the 
                        decision of the administrative law 
                        judge, the Commission declines to 
                        review such decision, or no quorum is 
                        seated, the decision of the 
                        administrative law judge shall become a 
                        final order of the Commission. If the 
                        Commission grants review of the 
                        objection, the Commission shall issue a 
                        decision regarding the stay not later 
                        than 30 days after receipt of the 
                        objection. If the Commission fails to 
                        issue such decision within 30 days, the 
                        decision of the administrative law 
                        judge shall become a final order of the 
                        Commission.
                          (iv) For notification to employees or 
                        representatives of affected employees 
                        of requests for such hearings and shall 
                        provide affected employees or 
                        representatives of affected employees 
                        an opportunity to participate as 
                        parties to such hearings.

                            JUDICIAL REVIEW

  Sec. 11. (a) * * *

           *       *       *       *       *       *       *

  (c)(1) No person shall [discharge or in any manner 
discriminate against any employee because such] discharge or 
cause to be discharged, or in any manner discriminate against 
or cause to be discriminated against, any employee because--
          (A) such employee has filed any complaint or 
        instituted or caused to be instituted any proceeding 
        under or related to [this Act or has] this Act;
          (B) such employee has testified or is about to 
        testify [in any such proceeding or because of the 
        exercise] before Congress or in any Federal or State 
        proceeding related to safety or health;
          (C) such employee has refused to violate any 
        provision of this Act; or
          (D) of the exercise by such employee on behalf of 
        himself or others of any right afforded by this Act, 
        including the reporting of any injury, illness, or 
        unsafe condition to the employer, agent of the 
        employer, safety and health committee involved, or 
        employee safety and health representative involved.
  [(2) Any employee who believes that he has been discharged or 
otherwise discriminated against by any person in violation of 
this subsection may, within thirty days after such violation 
occurs, file a complaint with the Secretary alleging such 
discrimination. Upon receipt of such complaint, the Secretary 
shall cause such investigation to be made as he deems 
appropriate. If upon such investigation, the Secretary 
determines that the provisions of this subsection have been 
violated, he shall bring an action in any appropriate United 
States district court against such person. In any such action 
the United States district courts shall have jurisdiction, for 
cause shown to restrain violations of paragraph (1) of this 
subsection and order all appropriate relief including rehiring 
or reinstatement of the employee to his former position with 
back pay.
  [(3) Within 90 days of the receipt of a complaint filed under 
this subsection the Secretary shall notify the complainant of 
his determination under paragraph 2 of this subsection.]
          (2) Prohibition of retaliation.--(A) No person shall 
        discharge, or cause to be discharged, or in any manner 
        discriminate against, or cause to be discriminated 
        against, an employee for refusing to perform the 
        employee's duties if the employee has a reasonable 
        apprehension that performing such duties would result 
        in serious injury to, or serious impairment of the 
        health of, the employee or other employees.
          (B) For purposes of subparagraph (A), the 
        circumstances causing the employee's good-faith belief 
        that performing such duties would pose a safety or 
        health hazard shall be of such a nature that a 
        reasonable person, under the circumstances confronting 
        the employee, would conclude that there is such a 
        hazard. In order to qualify for protection under this 
        paragraph, the employee, when practicable, shall have 
        communicated or attempted to communicate the safety or 
        health concern to the employer and have not received 
        from the employer a response reasonably calculated to 
        allay such concern.
          (3) Complaint.--Any employee who believes that the 
        employee has been discharged, disciplined, or otherwise 
        discriminated against by any person in violation of 
        paragraph (1) or (2) may seek relief for such violation 
        by filing a complaint with the Secretary under 
        paragraph (5).
          (4) Statute of limitations.--
                  (A) In general.--An employee may take the 
                action permitted by paragraph (3)(A) not later 
                than 180 days after the later of--
                          (i) the date on which an alleged 
                        violation of paragraph (1) or (2) 
                        occurs; or
                          (ii) the date on which the employee 
                        knows or should reasonably have known 
                        that such alleged violation occurred.
                  (B) Repeat violation.--Except in cases when 
                the employee has been discharged, a violation 
                of paragraph (1) or (2) shall be considered to 
                have occurred on the last date an alleged 
                repeat violation occurred.
          (5) Investigation.--
                  (A) In general.--An employee may, within the 
                time period required under paragraph (4)(B), 
                file a complaint with the Secretary alleging a 
                violation of paragraph (1) or (2). If the 
                complaint alleges a prima facie case, the 
                Secretary shall conduct an investigation of the 
                allegations in the complaint, which--
                          (i) shall include--
                                  (I) interviewing the 
                                complainant;
                                  (II) providing the respondent 
                                an opportunity to--
                                          (aa) submit to the 
                                        Secretary a written 
                                        response to the 
                                        complaint; and
                                          (bb) meet with the 
                                        Secretary to present 
                                        statements from 
                                        witnesses or provide 
                                        evidence; and
                                  (III) providing the 
                                complainant an opportunity to--
                                          (aa) receive any 
                                        statements or evidence 
                                        provided to the 
                                        Secretary;
                                          (bb) meet with the 
                                        Secretary; and
                                          (cc) rebut any 
                                        statements or evidence; 
                                        and
                          (ii) may include issuing subpoenas 
                        for the purposes of such investigation.
                  (B) Decision.--Not later than 90 days after 
                the filing of the complaint, the Secretary 
                shall--
                          (i) determine whether reasonable 
                        cause exists to believe that a 
                        violation of paragraph (1) or (2) has 
                        occurred; and
                          (ii) issue a decision granting or 
                        denying relief.
          (6) Preliminary order following investigation.--If, 
        after completion of an investigation under paragraph 
        (5)(A), the Secretary finds reasonable cause to believe 
        that a violation of paragraph (1) or (2) has occurred, 
        the Secretary shall issue a preliminary order providing 
        relief authorized under paragraph (14) at the same time 
        the Secretary issues a decision under paragraph (5)(B). 
        If a de novo hearing is not requested within the time 
        period required under paragraph (7)(A)(i), such 
        preliminary order shall be deemed a final order of the 
        Secretary and is not subject to judicial review.
          (7) Hearing.--
                  (A) Request for hearing.--
                          (i) In general.--A de novo hearing on 
                        the record before an administrative law 
                        judge may be requested--
                                  (I) by the complainant or 
                                respondent within 30 days after 
                                receiving notification of a 
                                decision granting or denying 
                                relief issued under paragraph 
                                (5)(B) or paragraph (6) 
                                respectively;
                                  (II) by the complainant 
                                within 30 days after the date 
                                the complaint is dismissed 
                                without investigation by the 
                                Secretary under paragraph 
                                (5)(A); or
                                  (III) by the complainant 
                                within 120 days after the date 
                                of filing the complaint, if the 
                                Secretary has not issued a 
                                decision under paragraph 
                                (5)(B).
                          (ii) Reinstatement order.--The 
                        request for a hearing shall not operate 
                        to stay any preliminary reinstatement 
                        order issued under paragraph (6).
                  (B) Procedures.--
                          (i) In general.--A hearing requested 
                        under this paragraph shall be conducted 
                        expeditiously and in accordance with 
                        rules established by the Secretary for 
                        hearings conducted by administrative 
                        law judges.
                          (ii) Subpoenas; production of 
                        evidence.--In conducting any such 
                        hearing, the administrative law judge 
                        may issue subpoenas. The respondent or 
                        complainant may request the issuance of 
                        subpoenas that require the deposition 
                        of, or the attendance and testimony of, 
                        witnesses and the production of any 
                        evidence (including any books, papers, 
                        documents, or recordings) relating to 
                        the matter under consideration.
                          (iii) Decision.--The administrative 
                        law judge shall issue a decision not 
                        later than 90 days after the date on 
                        which a hearing was requested under 
                        this paragraph and promptly notify, in 
                        writing, the parties and the Secretary 
                        of such decision, including the 
                        findings of fact and conclusions of 
                        law. If the administrative law judge 
                        finds that a violation of paragraph (1) 
                        or (2) has occurred, the judge shall 
                        issue an order for relief under 
                        paragraph (14). If review under 
                        paragraph (8) is not timely requested, 
                        such order shall be deemed a final 
                        order of the Secretary that is not 
                        subject to judicial review.
          (8) Administrative appeal.--
                  (A) In general.--Not later than 30 days after 
                the date of notification of a decision and 
                order issued by an administrative law judge 
                under paragraph (7), the complainant or 
                respondent may file, with objections, an 
                administrative appeal with an administrative 
                review body designated by the Secretary 
                (referred to in this paragraph as the ``review 
                board'').
                  (B) Standard of review.--In reviewing the 
                decision and order of the administrative law 
                judge, the review board shall affirm the 
                decision and order if it is determined that the 
                factual findings set forth therein are 
                supported by substantial evidence and the 
                decision and order are made in accordance with 
                applicable law.
                  (C) Decisions.--If the review board grants an 
                administrative appeal, the review board shall 
                issue a final decision and order affirming or 
                reversing, in whole or in part, the decision 
                under review by not later than 90 days after 
                receipt of the administrative appeal. If it is 
                determined that a violation of paragraph (1) or 
                (2) has occurred, the review board shall issue 
                a final decision and order providing relief 
                authorized under paragraph (14). Such decision 
                and order shall constitute final agency action 
                with respect to the matter appealed.
          (9) Settlement in the administrative process.--
                  (A) In general.--At any time before issuance 
                of a final order, an investigation or 
                proceeding under this subsection may be 
                terminated on the basis of a settlement 
                agreement entered into by the parties.
                  (B) Public policy considerations.--Neither 
                the Secretary, an administrative law judge, nor 
                the review board conducting a hearing under 
                this subsection shall accept a settlement that 
                contains conditions conflicting with the rights 
                protected under this Act or that are contrary 
                to public policy, including a restriction on a 
                complainant's right to future employment with 
                employers other than the specific employers 
                named in a complaint.
          (10) Inaction by the review board or administrative 
        law judge.--
                  (A) In general.--The complainant may bring a 
                de novo action described in subparagraph (B) 
                if--
                          (i) an administrative law judge has 
                        not issued a decision and order within 
                        the 90-day time period required under 
                        paragraph (7)(B)(iii); or
                          (ii) the review board has not issued 
                        a decision and order within the 90-day 
                        time period required under paragraph 
                        (8)(C).
                  (B) De novo action.--Such de novo action may 
                be brought at law or equity in the United 
                States district court for the district where a 
                violation of paragraph (1) or (2) allegedly 
                occurred or where the complainant resided on 
                the date of such alleged violation. The court 
                shall have jurisdiction over such action 
                without regard to the amount in controversy and 
                to order appropriate relief under paragraph 
                (14). Such action shall, at the request of 
                either party to such action, be tried by the 
                court with a jury.
          (11) Judicial review.--
                  (A) Timely appeal to the court of appeals.--
                Any party adversely affected or aggrieved by a 
                final decision and order issued under this 
                subsection may obtain review of such decision 
                and order in the United States Court of Appeals 
                for the circuit where the violation, with 
                respect to which such final decision and order 
                was issued, allegedly occurred or where the 
                complainant resided on the date of such alleged 
                violation. To obtain such review, a party shall 
                file a petition for review not later than 60 
                days after the final decision and order was 
                issued. Such review shall conform to chapter 7 
                of title 5, United States Code. The 
                commencement of proceedings under this 
                subparagraph shall not, unless ordered by the 
                court, operate as a stay of the final decision 
                and order.
                  (B) Limitation on collateral attack.--An 
                order and decision with respect to which review 
                may be obtained under subparagraph (A) shall 
                not be subject to judicial review in any 
                criminal or other civil proceeding.
          (12) Enforcement of order.--If a respondent fails to 
        comply with an order issued under this subsection, the 
        Secretary or the complainant on whose behalf the order 
        was issued may file a civil action for enforcement in 
        the United States district court for the district in 
        which the violation was found to occur to enforce such 
        order. If both the Secretary and the complainant file 
        such action, the action of the Secretary shall take 
        precedence. The district court shall have jurisdiction 
        to grant all appropriate relief described in paragraph 
        (14).
          (13) Burdens of proof.--
                  (A) Criteria for determination.--In making a 
                determination or adjudicating a complaint 
                pursuant to this subsection, the Secretary, 
                administrative law judge, review board, or a 
                court may determine that a violation of 
                paragraph (1) or (2) has occurred only if the 
                complainant demonstrates that any conduct 
                described in paragraph (1) or (2) with respect 
                to the complainant was a contributing factor in 
                the adverse action alleged in the complaint.
                  (B) Prohibition.--Notwithstanding 
                subparagraph (A), a decision or order that is 
                favorable to the complainant shall not be 
                issued in any administrative or judicial action 
                pursuant to this subsection if the respondent 
                demonstrates by clear and convincing evidence 
                that the respondent would have taken the same 
                adverse action in the absence of such conduct.
          (14) Relief.--
                  (A) Order for relief.--If the Secretary, 
                administrative law judge, review board, or a 
                court determines that a violation of paragraph 
                (1) or (2) has occurred, the Secretary or 
                court, respectively, shall have jurisdiction to 
                order all appropriate relief, including 
                injunctive relief, compensatory and exemplary 
                damages, including--
                          (i) affirmative action to abate the 
                        violation;
                          (ii) reinstatement without loss of 
                        position or seniority, and restoration 
                        of the terms, rights, conditions, and 
                        privileges associated with the 
                        complainant's employment, including 
                        opportunities for promotions to 
                        positions with equivalent or better 
                        compensation for which the complainant 
                        is qualified;
                          (iii) compensatory and consequential 
                        damages sufficient to make the 
                        complainant whole, (including back pay, 
                        prejudgment interest, and other 
                        damages); and
                          (iv) expungement of all warnings, 
                        reprimands, or derogatory references 
                        that have been placed in paper or 
                        electronic records or databases of any 
                        type relating to the actions by the 
                        complainant that gave rise to the 
                        unfavorable personnel action, and, at 
                        the complainant's direction, 
                        transmission of a copy of the decision 
                        on the complaint to any person whom the 
                        complainant reasonably believes may 
                        have received such unfavorable 
                        information.
                  (B) Attorneys' fees and costs.--If the 
                Secretary or an administrative law judge, 
                review board, or court grants an order for 
                relief under subparagraph (A), the Secretary, 
                administrative law judge, review board, or 
                court, respectively, shall assess, at the 
                request of the employee against the employer--
                          (i) reasonable attorneys' fees; and
                          (ii) costs (including expert witness 
                        fees) reasonably incurred, as 
                        determined by the Secretary, 
                        administrative law judge, review board, 
                        or court, respectively, in connection 
                        with bringing the complaint upon which 
                        the order was issued.
          (15)  Procedural rights.--The rights and remedies 
        provided for in this subsection may not be waived by 
        any agreement, policy, form, or condition of 
        employment, including by any pre-dispute arbitration 
        agreement or collective bargaining agreement.
          (16) Savings.--Nothing in this subsection shall be 
        construed to diminish the rights, privileges, or 
        remedies of any employee who exercises rights under any 
        Federal or State law or common law, or under any 
        collective bargaining agreement.
          (17) Election of venue.--
                  (A) In general.--An employee of an employer 
                who is located in a State that has a State plan 
                approved under section 18 may file a complaint 
                alleging a violation of paragraph (1) or (2) by 
                such employer with--
                          (i) the Secretary under paragraph 
                        (5); or
                          (ii) a State plan administrator in 
                        such State.
                  (B) Referrals.--If--
                          (i) the Secretary receives a 
                        complaint pursuant to subparagraph 
                        (A)(i), the Secretary shall not refer 
                        such complaint to a State plan 
                        administrator for resolution; or
                          (ii) a State plan administrator 
                        receives a complaint pursuant to 
                        subparagraph (A)(ii), the State plan 
                        administrator shall not refer such 
                        complaint to the Secretary for 
                        resolution.

           *       *       *       *       *       *       *


                               PENALTIES

  Sec. 17. (a) Any employer who willfully or repeatedly 
violates the requirements of section 5 of this Act, any 
standard, rule, or order promulgated pursuant to section 6 of 
this Act, or regulations prescribed pursuant to this Act, may 
be assessed a civil penalty or not more than [$70,000] $120,000 
for each violation, but not less than [$5,000] $8,000 for each 
willful violation. In determining whether a violation is 
repeated, the Secretary or the Commission shall consider the 
employer's history of violations under this Act and under State 
occupational safety and health plans established under section 
18. If such a willful or repeated violation caused or 
contributed to the death of an employee, such civil penalty 
amounts shall be increased to not more than $250,000 for each 
such violation, but not less than $50,000 for each such 
violation, except that for an employer with 25 or fewer 
employees such penalty shall not be less than $25,000 for each 
such violation.
  (b) Any employer who has received a citation for a serious 
violation of the requirements of section 5 of this Act, of any 
standard, rule, or order promulgated pursuant to section 6 of 
this Act, or of any regulations prescribed pursuant to this 
Act, shall be assessed a civil penalty of up to [$7,000] 
$12,000 for each such violation. If such a violation caused or 
contributed to the death of an employee, such civil penalty 
amounts shall be increased to not more than $50,000 for each 
such violation, but not less than $20,000 for each such 
violation, except that for an employer with 25 or fewer 
employees such penalty shall not be less than $10,000 for each 
such violation.
  (c) Any employer who has received a citation for a violation 
of the requirements of section 5 of this Act, of any standard, 
rule, or order promulgated pursuant to section 6 of this Act, 
or of regulations prescribed pursuant to this Act, and such 
violation is specifically determined not to be of a serious 
nature, may be assessed a civil penalty of up to [$7,000] 
$12,000 for each violation.
  [(d) Any employer who fails to correct a violation for which 
a citation has been issued under section 9(a) within the period 
permitted for its correction (which period shall not begin to 
run until the date of the final order of the Commission in the 
case of any review proceeding under section 10 initiated by the 
employer in good faith and not solely for delay or avoidance of 
penalties), may be assessed a civil penalty of not more than 
$12,000 for each day during which such failure or violation 
continues.]
  (d) Any employer who fails to correct a violation designated 
by the Secretary as serious, willful, or repeated and for which 
a citation has been issued under section 9(a) within the period 
permitted for its correction (and a stay has not been issued by 
the Commission under section 10(d)) may be assessed a civil 
penalty of not more than $12,000 for each day during which such 
failure or violation continues. Any employer who fails to 
correct any other violation for which a citation has been 
issued under section 9(a) of this title within the period 
permitted for its correction (which period shall not begin to 
run until the date of the final order of the Commission in the 
case of any review proceeding under section 10 initiated by the 
employer in good faith and not solely for delay of avoidance of 
penalties) may be assessed a civil penalty of not more than 
$12,000 for each day during which such failure or violation 
continues.
  (e) Amounts provided under this section for civil penalties 
shall be adjusted by the Secretary at least once during each 4-
year period beginning January 1, 2015, to account for the 
percentage increase or decrease in the Consumer Price Index for 
all urban consumers during such period.
      [(e) Any employer who willfully violates any standard, 
rule, or order promulgated pursuant to section 6 of this Act, 
or of any regulations prescribed pursuant to this Act, and that 
violation caused death to any employee, shall, upon conviction, 
be punished by a fine of not more than $10,000 or by 
imprisonment for not more than six months, or by both; except 
that if the conviction is for a violation committed after a 
first conviction of such person, punishment shall be by a fine 
of not more than $20,000 or by imprisonment for not more than 
one year, or by both.]
  (f)(1) Any employer who knowingly violates any standard, 
rule, or order promulgated under section 6 of this Act, or of 
any regulation prescribed under this Act, and that violation 
caused or significantly contributed to the death of any 
employee, shall, upon conviction, be punished by a fine in 
accordance with title 18, United States Code, or by 
imprisonment for not more than 10 years, or both, except that 
if the conviction is for a violation committed after a first 
conviction of such person under this subsection or subsection 
(i), punishment shall be by a fine in accordance title 18, 
United States Code, or by imprisonment for not more than 20 
years, or by both.
  (2) For the purpose of this subsection, the term ``employer'' 
means, in addition to the definition contained in section 3 of 
this Act, any officer or director.
      [(f) Any person who gives advance notice of any 
inspection to be conducted under this Act, without authority 
from the Secretary or his designees, shall upon conviction, be 
punished by a fine of not more than $1,000 or by imprisonment 
for not more than six months, or by both.]
  (g) Unless otherwise authorized by this Act, any person that 
knowingly gives, causes to give, or attempts to give or cause 
to give, advance notice of any inspection conducted under this 
Act with the intention of impeding, interfering with, or 
adversely affecting the results of such inspection, shall be 
fined under title 18, United States Code, imprisoned for not 
more than 5 years, or both.
      [(g)] (h) Whoever knowingly makes any false statement, 
representation, or certification in any application, record, 
report, plan, or other document filed or required to be 
maintained pursuant to this Act shall, upon conviction, be 
punished by a [fine of not more than $10,000, or by 
imprisonment for not more than six months,] fine in accordance 
with title 18, United States Code, or by imprisonment for not 
more than 5 years, or by both.
      [(h)] (i)(1) Section 1114 of title 18, United States 
Code, is hereby amended by striking out ``designated by the 
Secretary of Health, Education, and Welfare to conduct 
investigations, or inspections under the Federal Food, Drug, 
and Cosmetic Act'' and inserting in lieu thereof ``or of the 
Department of Labor assigned to perform investigative, 
inspection, or law enforcement functions''.

           *       *       *       *       *       *       *

      [(i)] (j) Any employer who violates of the posting 
requirements, as prescribed under the provisions of this Act, 
shall be assessed a civil penalty of up to [$7,000] $12,000 for 
each violation.
  (k)(1) Any employer who knowingly violates any standard, 
rule, or order promulgated under section 6, or any regulation 
prescribed under this Act, and that violation caused or 
significantly contributed to serious bodily harm to any 
employee but does not cause death to any employee, shall, upon 
conviction, be punished by a fine in accordance with title 18, 
United States Code, or by imprisonment for not more than 5 
years, or by both, except that if the conviction is for a 
violation committed after a first conviction of such person 
under this subsection or subsection (e), punishment shall be by 
a fine in accordance with title 18, United States Code, or by 
imprisonment for not more than 10 years, or by both.
  (2) For the purpose of this subsection, the term ``employer'' 
means, in addition to the definition contained in section 3 of 
this Act, any officer or director.
  (3) For purposes of this subsection, the term ``serious 
bodily harm'' means bodily injury or illness that involves--
          (A) a substantial risk of death;
          (B) protracted unconsciousness;
          (C) protracted and obvious physical disfigurement; or
          (D) protracted loss or impairment, either temporary 
        or permanent, of the function of a bodily member, 
        organ, or mental faculty.
      [(j)] (l) The Commission shall have authority to assess 
all civil penalties provided in this section, giving due 
consideration to the appropriateness of the penalty with 
respect to the size of the business of the employer being 
charged, the gravity of the violation, the good faith of the 
employer, and the history of previous violations, including the 
history of violations under section 11(c).
      [(k)] (m) For purposes of this section, a serious 
violation shall be deemed to exist in a place of employment if 
there is a substantial probability that death or serious 
physical harm could result from a condition which exists, or 
from one or more practices, means, methods, operations, or 
processes which have been adopted or are in use, in such place 
of employment unless the employer did not, and could not with 
the exercise of reasonable diligence, know of the presence of 
the violation.
      [(l)] (n) Civil penalties owed under this Act shall be 
paid to the Secretary for deposit into the Treasury of the 
United States and shall accrue to the United States and may be 
recovered in a civil action in the name of the United States 
brought in the United States district court for the district 
where the violation is alleged to have occurred or where the 
employer has its principal office. Pre-final order interest on 
such penalties shall begin to accrue on the date the party 
contests a citation issued under this Act, and shall end upon 
the issuance of the final order. Such pre-final order interest 
shall be calculated at the current underpayment rate determined 
by the Secretary of the Treasury pursuant to section 6621 of 
the Internal Revenue Code of 1986, and shall be compounded 
daily. Post-final order interest shall begin to accrue 30 days 
after the date a final order of the Commission or the court is 
issued, and shall be charged at the rate of 8 percent per year.
  (o) Nothing in this Act shall preclude a State or local law 
enforcement agency from conducting criminal prosecutions in 
accordance with the laws of such State or locality.

           *       *       *       *       *       *       *


                   STATE JURISDICTION AND STATE PLANS

  Sec. 18. (a) * * *

           *       *       *       *       *       *       *

  [(f) The Secretary shall, on the basis of reports submitted 
by the State agency and his own inspections make a continuing 
evaluation of the manner in which each State having a plan 
approved under this section is carrying out such plan. Whenever 
the Secretary finds, after affording due notice and opportunity 
for a hearing, that in the administration of the State plan 
there is a failure to comply substantially with any provision 
of the State plan (or any assurance contained therein), he 
shall notify the State agency of his withdrawal of approval of 
such plan and upon receipt of such notice such plan shall cease 
to be in effect, but the State may retain jurisdiction in any 
case commenced before the withdrawal of the plan in order to 
enforce standards under the plan whenever the issues involved 
do not relate to the reasons for the withdrawal of the plan.]
  (f)(1) The Secretary shall, on the basis of reports submitted 
by the State agency and the Secretary's own inspections, make a 
continuing evaluation of the manner in which each State that 
has a plan approved under this section is carrying out such 
plan. Such evaluation shall include an assessment of whether 
the State continues to meet the requirements of subsection (c) 
of this section and any other criteria or indices of 
effectiveness specified by the Secretary in regulations. 
Whenever the Secretary finds, on the basis of such evaluation, 
that in the administration of the State plan there is a failure 
to comply substantially with any provision of the State plan 
(or any assurance contained therein), the Secretary shall make 
an initial determination of whether the failure is of such a 
nature that the plan should be withdrawn or whether the failure 
is of such a nature that the State should be given the 
opportunity to remedy the deficiencies, and provide notice of 
the Secretary's findings and initial determination.
  (2) If the Secretary makes an initial determination to 
reassert and exercise concurrent enforcement authority while 
the State is given an opportunity to remedy the deficiencies, 
the Secretary shall afford the State an opportunity for a 
public hearing within 15 days of such request, provided that 
such request is made not later than 10 days after Secretary's 
notice to the State. The Secretary shall review and consider 
the testimony, evidence, or written comments, and not later 
than 30 days following such hearing, make a determination to 
affirm, reverse, or modify the Secretary's initial 
determination to reassert and exercise concurrent enforcement 
authority under sections 8, 9, 10, 13, and 17 with respect to 
standards promulgated under section 6 and obligations under 
section 5(a). Following such a determination by the Secretary, 
or in the event that the State does not request a hearing 
within the time frame set forth in this paragraph, the 
Secretary may reassert and exercise such concurrent enforcement 
authority, while a final determination is pending under 
paragraph (3) or until the Secretary has determined that the 
State has remedied the deficiencies as provided under paragraph 
(4). Such determination shall be published in the Federal 
Register. The procedures set forth in section 18(g) shall not 
apply to a determination by the Secretary to reassert and 
exercise such concurrent enforcement authority.
  (3) If the Secretary makes an initial determination that the 
plan should be withdrawn, the Secretary shall provide due 
notice and the opportunity for a hearing. If based on the 
evaluation, comments, and evidence, the Secretary makes a final 
determination that there is a failure to comply substantially 
with any provision of the State plan (or any assurance 
contained therein), he shall notify the State agency of the 
withdrawal of approval of such plan and upon receipt of such 
notice such plan shall cease to be in effect, but the State may 
retain jurisdiction in any case commenced before the withdrawal 
of the plan in order to enforce standards under the plan 
whenever the issues involved do not relate to the reasons for 
the withdrawal of the plan.
  (4) If the Secretary makes a determination that the State 
should be provided the opportunity to remedy the deficiencies, 
the Secretary shall provide the State an opportunity to respond 
to the Secretary's findings and the opportunity to remedy such 
deficiencies within a time period established by the Secretary, 
not to exceed 1 year. The Secretary may extend and revise the 
time period to remedy such deficiencies, if the State's 
legislature is not in session during this 1 year time period, 
or if the State demonstrates that it is not feasible to correct 
the deficiencies in the time period set by the Secretary, and 
the State has a plan to correct the deficiencies within a 
reasonable time period. If the Secretary finds that the State 
agency has failed to remedy such deficiencies within the time 
period specified by the Secretary and that the State plan 
continues to fail to comply substantially with a provision of 
the State plan, the Secretary shall withdraw the State plan as 
provided for in paragraph (3).

           *       *       *       *       *       *       *

  (i) Not later than 18 months after the date of enactment of 
this subsection, and every 5 years thereafter, the Comptroller 
General shall complete and issue a review of the effectiveness 
of State plans to develop and enforce safety and health 
standards to determine if they are at least as effective as the 
Federal program and to evaluate whether the Secretary's 
oversight of State plans is effective. The Comptroller 
General's evaluation shall assess--
          (1) the effectiveness of the Secretary's oversight of 
        State plans, including the indices of effectiveness 
        used by the Secretary;
          (2) whether the Secretary's investigations in 
        response to Complaints About State Plan Administration 
        (CASPA) are adequate, whether significant policy issues 
        have been identified by headquarters and corrective 
        actions are fully implemented by each State;
          (3) whether the formula for the distribution of funds 
        described in section 23(g) to State programs is fair 
        and adequate; and
          (4) whether State plans are as effective as the 
        Federal program in preventing occupational injuries, 
        illnesses and deaths, and investigating discrimination 
        complaints, through an evaluation of at least 20 
        percent of approved State plans, and which shall 
        cover--
                  (A) enforcement effectiveness, including 
                handling of fatalities, serious incidents and 
                complaints, compliance with inspection 
                procedures, hazard recognition, verification of 
                abatement, violation classification, citation 
                and penalty issuance, including appropriate use 
                of willful and repeat citations, and employee 
                involvement;
                  (B) inspections, the number of programmed 
                health and safety inspections at private and 
                public sector establishments, and whether the 
                State targets the highest hazard private sector 
                work sites and facilities in that State;
                  (C) budget and staffing, including whether 
                the State is providing adequate budget 
                resources to hire, train and retain sufficient 
                numbers of qualified staff, including timely 
                filling of vacancies;
                  (D) administrative review, including the 
                quality of decisions, consistency with Federal 
                precedence, transparency of proceedings, 
                decisions and records are available to the 
                public, adequacy of State defense, and whether 
                the State appropriately appeals adverse 
                decisions;
                  (E) anti discrimination, including whether 
                discrimination complaints are processed in a 
                timely manner, whether supervisors and 
                investigators are properly trained to 
                investigate discrimination complaints, whether 
                a case file review indicates merit cases are 
                properly identified consistent with Federal 
                policy and procedure, whether employees are 
                notified of their rights, and whether there is 
                an effective process for employees to appeal 
                the dismissal of a complaint;
                  (F) program administration, including whether 
                the State's standards and policies are at least 
                as effective as the Federal program and are 
                updated in a timely manner, and whether 
                National Emphasis Programs that are applicable 
                in such States are adopted and implemented in a 
                manner that is at least as effective as the 
                Federal program;
                  (G) whether the State plan satisfies the 
                requirements for approval set forth in this 
                section and its implementing regulations; and
                  (H) other such factors identified by the 
                Comptroller General, or as requested by the 
                Committee on Education and Labor of the House 
                of Representatives or the Committee on Health, 
                Education, Labor and Pensions of the Senate.

           *       *       *       *       *       *       *


                    RESEARCH AND RELATED ACTIVITIES

  Sec. 20. (a)(1) * * *

           *       *       *       *       *       *       *

  (6) The Secretary of Health, Education, and Welfare shall 
publish within six months of enactment of this Act and 
thereafter as needed but at least annually a list of all known 
toxic substances by generic family or other useful grouping, 
and the concentrations at which such toxicity is known to 
occur. [He shall determine following a written request by any 
employer or authorized representative of employees, specifying 
with reasonable particularity the grounds on which the request 
is made, whether any substance normally found in the place of 
employment has potentially toxic effects in such concentrations 
as used or found; and shall submit such determination both to 
employers and affected employees as soon as possible.] The 
Secretary shall determine following a written request by any 
employer, authorized representative of current or former 
employees, physician, other Federal agency, or State or local 
health department, specifying with reasonable particularity the 
grounds on which the request is made, whether any substance 
normally found in the place of employment has potentially toxic 
effects in such concentrations as used or found or whether any 
physical agents, equipment, or working condition found or used 
has potentially hazardous effects; and shall submit such 
determination both to employers and affected employees as soon 
as possible. If the Secretary of Health, Education, and Welfare 
determines that any substance is potentially toxic at the 
concentrations in which it is used or found in a place of 
employment, and such substance is not covered by an 
occupational safety or health standard promulgated under 
section 6, the Secretary of Health, Education, and Welfare 
shall immediately submit such determination to the Secretary, 
together with all pertinent criteria.

           *       *       *       *       *       *       *


         NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH

  Sec. 22. (a) * * *

           *       *       *       *       *       *       *

  (h) Office of Mine Safety and Health.--
          (1) * * *

           *       *       *       *       *       *       *

          (3) Functions.--In addition to all purposes and 
        authorities provided for under this section, the Office 
        of Mine Safety and Health shall be responsible for 
        research, development, and testing of new technologies 
        and equipment designed to enhance mine safety and 
        health. To carry out such functions the Director of the 
        Institute, acting through the Office, shall have the 
        authority to--
                  (A) * * *
                  (B) award contracts to educational 
                institutions or private laboratories for the 
                performance of product testing or related work 
                with respect to new mine technology and 
                equipment; [and]
                  (C) enter into cooperative agreements or 
                contracts with international institutions and 
                private entities to improve mine safety and 
                health through the development and evaluation 
                of new interventions; and
                  [(C)] (D) establish an interagency working 
                group as provided for in paragraph (5).

           *       *       *       *       *       *       *


                    XVIII. Committee Correspondence

    None.

             SUPPLEMENTAL VIEW OF REPRESENTATIVE PHIL HARE

    I strongly support the majority views expressed in the 
Committee Report to accompany H.R. 5663, the Robert C. Byrd 
Mine Safety and Health Act of 2010. This bill goes to great 
lengths to improve the enforcement powers at the disposal of 
the Occupational Safety and Health Administration (OSHA) and 
replace the outdated tools and ineffective enforcement powers 
it has today. In particular, I agree that OSHA must have the 
increased capacity to address repeat violations across multi-
establishment employers, which this bill strengthens in Section 
705 by expanding Section 17(a) of the Occupational Safety and 
Health Act to authorize OSHA and the Occupational Safety and 
Health Review Commission to consider an employer's history of 
violations which occur in OSHA state plan states when assessing 
penalties for repeat violations.
    Additionally, I join the Committee in supporting OSHA's 
Severe Violator Enforcement Program (SVEP), and feel it is a 
critical step in the right direction in ensuring that multi-
establishment hazards are abated. To underscore and further 
elaborate on the language provided in the Committee report 
regarding multi-establishment employers, it should be clear 
that all employers who have received a ``high-severity'' 
violation, not just the employers under the SVEP, need to 
evaluate any similar establishments and to determine whether 
the hazard also exists at such establishments. Given limited 
resources, OSHA's Field Operations Manual should be updated to 
require OSHA, as part of its enforcement actions involving 
``high severity'' violations to require employers to report 
back and certify to OSHA that the hazard has either been abated 
or does not exist at all similar establishments. This 
clarification is necessary, because the number of employers and 
violations that fall under the SVEP would not capture all work 
sites that could be putting workers at needless risk from a 
repeat violation.
                                                         Phil Hare.

                             MINORITY VIEWS

                              INTRODUCTION

    On April 5, 2010, an underground explosion at the Upper Big 
Branch Mine in Montcoal, West Virginia killed 29 coal miners 
and thrust the dangers of mining into the national spotlight. 
The tragedy at Upper Big Branch was devastating, and all 
Americans joined the families, the state of West Virginia and 
the communities in and around Montcoal in mourning their 
incalcuable loss.
    In the wake of this tragedy, Congress once again turned its 
attention to the issue of mine safety. The Upper Big Branch 
explosion forced policymakers to focus not only on the efficacy 
of our nation's mine safety laws and regulations, but also on 
the manner in which the federal agency responsible for 
implementing and enforcing those laws and regulations--the Mine 
Safety and Health Administration (MSHA)--is fulfilling its 
obligations. While numerous investigations into the Upper Big 
Branch accident have yet to provide any conclusive findings, 
preliminary reviews have exposed serious deficiencies in the 
law and its enforcement. Republicans and Democrats alike have 
sought to address those deficiencies with the shared intent of 
improving mine safety and better protecting the Americans who 
work in this inherently dangerous industry.
    Despite its good intentions, H.R. 5663 unfortunately falls 
short in its effort to provide focused reforms that will 
improve mine safety. The bill reflects a heavy-handed approach 
more focused on punishing mine operators than addressing 
identifiable opportunities to prevent mining accidents in the 
first place. Moreover, the bill drifts far afield of its stated 
purpose by including provisions wholly unrelated to mining or 
mine safety. For reasons only the Majority can explain, H.R. 
5663 also includes wholesale changes to the Occupational Safety 
and Health (OSH) Act.\1\ While the inclusion of these unrelated 
provisions is troubling in and of itself, the implications of 
the specific proposed policies are of far greater concern. 
These too appear premised on the notion of imposing punishment 
rather than improving workplace safety. Also of concern is the 
speed with which the majority insists on proceeding--refusing 
to wait for the results of multiple ongoing investigations. For 
these reasons, Committee Republicans are united in their 
opposition to this legislation and urge that it be rejected by 
the House of Representatives in favor of focused, well-informed 
mine safety reforms.
---------------------------------------------------------------------------
    \1\29 U.S.C. Sec. Sec. 651, et seq.
---------------------------------------------------------------------------

                          LEGISLATIVE HISTORY

    The issues relating to mine safety are not new to the 
Members of this Committee. During the 109th Congress, the House 
passed the Mine Improvement and New Emergency Response Act of 
2006 (the MINER Act),\2\ which was signed into law on June 15, 
2006 and included the most significant reforms to the Federal 
Mine Safety and Health Act of 1977\3\ in more than a 
generation. Chief among them were new requirements that mine 
operators adopt emergency response plans, install post-accident 
breathable air and directional lifelines, and improve worker 
training and communications.
---------------------------------------------------------------------------
    \2\P.L. 109-236.
    \3\See Federal Mine Safety and Health Act, P.L. 91-173 (December 
30, 1969), codified at 30 U.S.C. 801, et seq. The legislation was 
originally known as the Federal Coal Mine Health and Safety Act of 
1969, but in 1977 was amended and its name changed to the Federal Mine 
Safety and Health Act of 1977.
---------------------------------------------------------------------------
    Essential to the enactment of the MINER Act was the 
bipartisan manner in which it was developed. Members of both 
parties worked with industry and worker representatives to 
fashion a bill all parties agreed would materially improve mine 
safety.
    The Committee again considered mine safety legislation 
during the 110th Congress, but with far different results. In 
2007, the Committee considered H.R. 2768, the Supplemental Mine 
Improvement and New Emergency Response Act (S-MINER). The bill, 
developed solely by the panel's Democrats without accepting any 
meaningful stakeholder input, sought to impose any number of 
new regulatory requirements with respect to mine seals, belt 
air, refuge chambers, and communications. Not only were these 
new requirements unworkable, many would have had the perverse 
effect of undoing the progress in mine safety brought about by 
the aforementioned MINER Act. The S-MINER Act was considered 
and approved by the House on January 16, 2008; it was never 
considered in the Senate.
    Committee Republicans believe lessons can be drawn from 
these contrasting processes and outcomes. In the case of the 
MINER Act, an open, bipartisan process produced a consensus 
product that passed both chambers of Congress and was 
ultimately signed into law. Mine safety improved as a result. 
In the case of the S-MINER Act, a closed, partisan process 
produced an unworkable product that could not advance beyond 
the House of Representatives. It did nothing to improve mine 
safety. Unfortunately, the Majority has elected to pursue the 
latter path for H.R. 5663; Committee Republicans expect the 
result will be the same.

          DEFICIENCIES IN THE CURRENT MINING REGULATORY SYSTEM

    In assessing the policy implications of H.R. 5663, it is 
instructive to consider current strengths and weaknesses in 
federal mine safety oversight and regulation, which is 
primarily administered by MSHA.
The Mine Safety and Health Review Commission case backlog
    When MSHA issues citations for violations of mining safety 
laws, mine operators are permitted to contest the violations if 
they believe the citations were issued in error. In recent 
years, this process appears to have broken down due, at least 
in part, to an increase in the number of contested citations at 
the Mine Safety and Health Review Commission (MSHRC).
    The series of events that led to the increase were examined 
in a Committee hearing on February 23, 2010. One reason behind 
the increase in contested citations is the MINER Act's 
increased penalties for all violations, which resulted in 
higher costs and increased incentives for mine operators to 
challenge penalties because of those costs. Further, MSHA came 
under fire for failing to perform all statutorily required 
inspections. In response, MSHA removed its representatives that 
had been working in the conference process used to resolve 
violations, and transferred them to inspection duties. Also, on 
February 4, 2008 and March 27, 2009, MSHA issued Procedure 
Instruction Letters (PIL) that reduced the ability of mine 
operators to use the conference process to address citations, 
which had previously been successful in resolving many disputed 
citations.
    Witnesses at the Committee's February 23, 2010 hearing 
suggested this breakdown in the conference process was a 
contributing factor to the MSHRC backlog.

          On March 27, 2009, MSHA published a new model for 
        conferences. Rather than conducting an informal 
        conference prior to receiving an assessment and filing 
        with the Commission, the new system requires the 
        operator to wait until an assessment is received and 
        file after the enforcement action in question is 
        docketed. Now all conferences will take place only 
        after civil penalties are proposed and timely 
        contested. This means that an operator eager to avoid 
        litigation through the conference process must contest 
        the citation, file a written request for a conference 
        within 10 days, wait for a period of at least four to 
        six weeks, receive the proposed penalty assessment, 
        contest the penalty within 30 days of receipt and then 
        have a conference within 90-days, unless an extension 
        is requested (usually by MSHA).\4\
---------------------------------------------------------------------------
    \4\See, Testimony of Bruce Watzman, Committee on Education and 
Labor Hearing, ``Reducing the Growing Backlog of Contested Mine Safety 
Cases,'' February 23, 2010.

    At the same hearing, the top MSHA official committed to 
---------------------------------------------------------------------------
reestablishing the conference process:

          After a review of the conferencing process it appears 
        that the best approach is to hold the MSHA health and 
        safety conference, if requested by the mine operator, 
        prior to MSHA issuing a proposed penalty assessment, 
        and provide the mine operator with an estimated penalty 
        amount based on the standard assessment formula. The 
        MSHA field conferencing and litigation representatives 
        (CLRs) and potentially other personnel would review the 
        facts of the violation and the inspector's 
        determination of negligence, likeliness of occurrence, 
        etc., as before. The resolution of these cases does not 
        require Commission approval unless they are later 
        contested. MSHA will implement this change through 
        policy.\5\
---------------------------------------------------------------------------
    \5\See,Testimony of Assistant Secretary Joe Main, Committee on 
Education and Labor Hearing, ``Reducing the Growing Backlog of 
Contested Mine Safety Cases,'' February 23, 2010.

    To date, however, MSHA has not made the promised changes to 
the conference process and the backlog of contested citations 
remains.
    Finally, as discussed in greater detail below, MSHA has in 
recent years attempted a more vigorous use of the ``pattern of 
violations'' (POV) system to target mine operators that 
habitually fail to meet their obligations under the Act. This 
placed increasing pressure on mine operators to remove and 
clear as many citations as possible to avoid POV status, which 
entails significantly increased oversight and cost. This 
confluence of policy changes increased penalties, fewer 
conferences, and higher scrutiny of a mine operator's violation 
history--contributed to the backlog.
Pattern of violations policy
    After several multi-fatality mining accidents in 2006 and 
the Crandall Canyon incident in 2007, MSHA renewed its efforts 
to place mines in POV status by issuing criteria for making POV 
determinations and notifying certain mines of their potential 
POV status.
    Under current rules, if a mine operator's citation history 
meets specific criteria, MSHA can place the mine in POV status. 
Once there, any additional citations issued automatically 
trigger an increase in monetary penalties. In addition, a mine 
in POV status is subject to more inspections and MSHA 
inspectors can issue orders to shut down the mine more readily. 
To emerge from POV status, a mine must demonstrate a 30 percent 
reduction in serious and substantial violations of mine safety 
laws over a 90-day period.\6\
---------------------------------------------------------------------------
    \6\http://www.msha.gov/POV/POVScreeningCriteria.pdf.
---------------------------------------------------------------------------
    MSHA only considers ``final'' orders issued by the MSHRC in 
determining whether to put a mine in POV status. Citations in 
the process of being contested are not included in that 
determination. This has led critics to charge that mine 
operators are purposefully contesting more citations to avoid 
``final'' decisions and thus possibly triggering a POV 
designation.
    However, a closer look at the agency's own actions reveal 
systemic problems experienced by MSHA in attempting to enforce 
existing POV rules. For example, the agency announced on April 
14, 2010 that a computer error in the fall of 2009 prevented 
Upper Big Branch from designation as a potential POV mine.
    Further, the U.S. Department of Labor's Office of Inspector 
General (OIG) issued an Alert Memorandum on June 23, 2010 
calling for immediate corrective action in the wake of 
revelations that an internal MSHA policy had limited the number 
of mines identified for potential POV status because of 
resource limitations, ignoring legitimate safety concerns.\7\ 
The OIG is currently conducting its own investigation into the 
POV system and is expected to provide recommendations in 
September.
---------------------------------------------------------------------------
    \7\See Alert Memorandum: MSHA Set Limits on the Number of Potential 
Pattern of Violation Mines to be Monitored Report No. 05-10-004-06-001, 
June 23, 2010.
---------------------------------------------------------------------------
    Notably, it seems clear changes to the POV system could 
have occurred prior to the Upper Big Branch fatalities had MSHA 
revised its own ``Pattern of Violations Screening Criteria'' 
guidelines.\8\ Changes to this document do not require 
legislative action, and months before the Upper Big Branch 
explosion, Assistant Secretary Main acknowledged the POV system 
is in need of improvement.
---------------------------------------------------------------------------
    \8\http://www.msha.gov/POV/POVScreeningCriteria.pdf.

          It is important that we remove the incentive for 
        operators with repeated S&S; [Significant and 
        Substantial] safety violations at their mine to contest 
        violations simply to delay enforcement. Delay in 
        addressing S&S; hazardous conditions puts miners at 
        risk, is at odds with the purpose of the Mine Act and 
        mission of MSHA, and is unacceptable. MSHA is 
        considering a review of the pattern of violation 
        process to determine whether our current approach is 
        the best one for providing timely protection for miners 
        working at mines with high levels of S&S; violations.\9\
---------------------------------------------------------------------------
    \9\See, Testimony of Assistant Secretary Joe Main, Committee on 
Education and Labor Hearing, ``Reducing the Growing Backlog of 
Contested Mine Safety Cases,'' February 23, 2010.

    To date, no mine has ever been placed in POV status. 
Reevaluating the POV system was included on MSHA's most recent 
semi-annual regulatory agenda, released approximately three 
weeks after the Upper Big Branch mine explosion.\10\ However, 
the agency has not yet announced any proposed changes to the 
current system, nor has it completed an analysis of mine safety 
records to identify potential POV status mines since September 
2009.
---------------------------------------------------------------------------
    \10\See, Federal Register, April 28, 2010.
---------------------------------------------------------------------------
Additional statutory and regulatory weaknesses
    In recent months, additional deficiencies at MSHA and 
within current law have been identified through the Upper Big 
Branch investigations, the OIG's investigative work, and the 
Committee's oversight activities. Lawmakers and agency 
officials agree MSHA is hamstrung by current limitations on its 
ability to be granted subpoena power for accident 
investigations. Further, MSHA needs to ensure mine inspectors 
receive adequate training to identify mining hazards--a 
responsibility on which it is currently falling short, as 
described in a March 30, 2010, OIG report.\11\ Finally, an 
update of safety and health standards is necessary to improve 
the safety of miners.
---------------------------------------------------------------------------
    \11\See, ``Journeyman Mine Inspectors Do Not Receive Required 
Periodic Retraining,'' Department of Labor, Inspector General Office of 
Audit, March 30, 2010. Report Number 05-10-001-06-001.
---------------------------------------------------------------------------

                            REPUBLICAN VIEWS

    Committee Republicans are committed to improving mine 
safety, a goal that cannot be achieved without first knowing 
whether mine operators are complying with current laws and 
whether federal authorities are fully enforcing those laws. 
Republicans believe certain areas of improvement have been 
identified and are widely understood; those areas for reform 
were addressed in the Republican Substitute offered during the 
Committee's consideration of H.R. 5663.
A flawed process has produced a flawed bill
    As noted previously, Congress has a proven history of 
bipartisanship to improve mine safety. The MINER Act, signed 
into law in 2006, serves as an example of how divergent views 
and interests can be accommodated when Members set aside 
partisanship in the name of workplace safety. The S-MINER Act, 
on the other hand, stands in stark contrast to that model. In 
that case, the shared goal of improving mine safety fell victim 
to partisan politics, a dynamic that ultimately doomed that 
effort to failure.
    Unfortunately, in the case of H.R. 5663, the Majority 
elected to follow a path strikingly similar to that which led 
to the demise of the S-MINER Act three years ago. Rather than 
engaging Committee Republicans in a meaningful way at the 
outset of the legislative process, Committee Democrats instead 
elected to craft H.R. 5663 in a purely partisan manner. 
Exemplifying this exclusionary process, Committee Republicans 
were provided a final draft of the legislation less than twelve 
hours before the Committee met to consider the bill, severely 
limiting the opportunity for Republicans to evaluate and 
respond to several significant, last-minute changes. The 
result, not surprisingly, is a legislative product that 
reflects a single, narrow point of view; one focused on 
imposing punishment rather than improving mine safety.
    Committee Republicans are also concerned by the haste with 
which H.R. 5663 is being advanced. No less than three separate 
investigations--at both the state and federal levels--are 
currently underway to examine the circumstances that led to the 
tragic loss of life at the Upper Big Branch mine. The results 
of those investigations are not yet available.
    In addition, the OIG is reviewing--at Congress' request--a 
number of serious questions raised in connection with MSHA's 
enforcement of its own mine safety regulations and protocols, 
some of which may have relevance to the Upper Big Branch 
investigations. The OIG's investigation is also not concluded.
    Finally, less than two months ago, the Committee on 
Education and Labor was granted by the full House the 
extraordinary power of deposition authority in order to assess 
whether mine safety laws are being properly obeyed and 
enforced. That investigative effort, like every other initiated 
in response to Upper Big Branch, is also still ongoing.
    With so many agencies and so many resources being devoted 
to examining the circumstances that contributed to the Upper 
Big Branch tragedy, one cannot help but ask why the Majority is 
insisting on rushing such an expansive piece of legislation. 
Committee Republicans believe miners would be better served by 
focusing our legislative efforts on those areas we know would 
improve mine safety, while waiting to consider more far-
reaching proposals until the conclusion of the various 
investigations, when all parties can carefully consider the 
information and recommendations of those inquiries.
Democrats focus on punishment instead of prevention
    H.R. 5663 is replete with increased civil and criminal 
penalties, lower standards of liability, and expansive new 
whistleblower provisions. Republicans believe punishing bad 
actors is important. However, we also believe working in a 
proactive manner to prevent injuries and fatalities before they 
occur is far more important.
Penalties
    In testimony received by this Committee on July 13, 2010, 
Mr. Cecil Roberts, President of the United Mine Workers of 
America (UMWA), said that ``most of this industry--and I have 
said as high as 95 percent--do the right thing.''\12\ Yet the 
Majority proposes substantial increases in civil fines, up to 
$2,000,000 in certain cases, and harsh new criminal penalties 
that include up to 20 years imprisonment for violations of the 
law. These penalties would apply to all mine operators affected 
by the legislation's new penalty framework, including many of 
the 95 percent that, according to Mr. Roberts, ``do the right 
thing.''
---------------------------------------------------------------------------
    \12\See, Testimony of Cecil Roberts, Committee on Education and 
Labor Hearing, ``H.R. 5663, the Mine Safety and Health Act of 2010,'' 
July 13, 2010.
---------------------------------------------------------------------------
    In addition to increasing monetary penalties, the Majority 
alters the underlying penalty structure, making it more 
punitive and easier for ``good'' operators to be unjustly 
penalized. For example, H.R. 5663 would impose pre-order 
interest on a violation, the calculation of which starts at the 
time an operator contests a citation. While apparently intended 
to reduce the caseload at the MSHRC, this new fee to exercise 
due process rights would be imposed on operators that contest 
citations in good faith, significantly increasing the costs of 
such challenges. Further, these interest amounts on higher base 
level penalties will likely be compounded through no fault of 
the operator because of the extended length of time it takes to 
resolve a case from a contest to final order.\13\ Again, for 
those mines included in H.R. 5663's new penalty rubric, the 95 
percent of operators that ``do the right thing'' would be 
penalized for exercising their rights in good faith.
---------------------------------------------------------------------------
    \13\The average number of days it took to dispose of these cases 
increased from 178 days in FY 2006 to 401 days in FY 2009. See, 
Testimony of Mary Lu Jordan, Committee on Education and Labor Hearing, 
``Reducing the Growing Backlog of Contested Mine Safety Cases,'' 
February 23, 2010.
---------------------------------------------------------------------------

Standard of liability

    H.R. 5663 lowers the standard of liability applicable to 
many civil and criminal penalties contained in both the mining 
and occupational safety sections of the bill (Titles III and 
VII). Specifically, the legislation would replace the current 
``willful'' standard with a ``knowing'' requirement for 
violations of mandatory health or safety standards. This change 
would significantly lower the level of intent required to prove 
violations, thereby exposing mine operators, businesses, 
corporate officers, agents and employees to increased liability 
and endless litigation.
    The bill contains no statutory definition of ``knowingly,'' 
nor does it provide an explanation or indication of how the 
``knowing'' intent level for penalties under both OSHA and MSHA 
is to be determined or limited. At the legislative hearing on 
H.R. 5663 on July 13, 2010, one of the witnesses summarized 
some of the concerns associated with using a ``knowing'' 
standard, especially in relation to criminal sanctions:

          Such a change would upend decades of OSHA law--dating 
        to the passage of the OSH Act in 1970 and introduce 
        tremendous uncertainty, further guaranteeing 
        substantial increases in contested cases. While the 
        ``knowing'' standard is used in environmental statutes, 
        it has not been the standard for OSHA criminal 
        culpability. In environmental law, the term ``knowing'' 
        has come to be associated with a low level of intent, 
        almost akin to a strict liability standard where the 
        party in question has to know only that a given 
        activity was taking place, not that there was a 
        violation occurring or that environmental laws were 
        being broken. As there is no further definition in the 
        bill of this standard, employers (and OSHA inspectors) 
        will be left to guess what this means and when it 
        should apply. This is a prescription for utter 
        confusion and legal challenges that will be costly to 
        both the employer and the agency.
          Further, imposing criminal liability on any ``an 
        officer or director'' is equally troublesome. The CWS 
        [Coalition for Workplace Safety] believes this proposal 
        will result in a witch hunt to hold officers or 
        directors responsible. Expanding criminal liability to 
        any officer or director will make corporate personnel 
        unduly subject to prosecution even if they generally 
        have no involvement in day to day operations. All of 
        these terms are vague and ambiguous as to who would 
        fall within these categories. These terms are also 
        vague as to how they would be applied in the legal 
        process; do they apply only to the corporate entity or 
        other legal entities such as partnerships? Does this 
        mean that any limited partner or director would now be 
        subject to potential criminal prosecution? How would 
        responsibility be determined? None of these changes 
        will improve workplace safety and health, and actually, 
        this new requirement, if adopted, could result in 
        adverse impacts as corporate employees would now fear 
        that any decision they could make on the jobsite could 
        subject them to prosecution; a safety director or E, H 
        & S employee could be faced with the reality that every 
        one of their decisions would be micromanaged, 
        potentially by employees who have little or no 
        expertise in safety and health. This will create a 
        chilling effect on these employees trying to simply do 
        their job, or even taking these jobs. Furthermore, 
        these are the people that should get those jobs--the 
        ones that care enough and know what should be done, but 
        do not want to be exposed to criminal liability because 
        of the actions of an employee they could not control. 
        This could create uncertainty on the jobsite with a net 
        reduction of workplace safety and health.\14\
---------------------------------------------------------------------------
    \14\See, Testimony of Jonathan L. Snare, Esq., Committee on 
Education and Labor Hearing, ``H.R. 5663, the Miner Safety and Health 
Act of 2010,'' July 13, 2010. Mr. Snare's comments appear to have equal 
relevance to the bill's proposed changes to mine safety laws.

    Application of this new, lower standard of intent to 
virtually all employees and officers of a business is a 
monumental shift in workplace safety policy, a stance all the 
more extreme given that individuals face up to 20 years 
imprisonment under a standard akin to strict liability, where 
individuals lack willful intent or a ``bad purpose'' in their 
actions or knowledge.
    Committee Republicans believe that such punitive measures 
will likely stifle, rather than support, efforts to improve 
safety programs and expose individuals to severe criminal 
penalties without sufficient intent to do harm.

Expansion of whistleblower protections

    Committee Republicans believe the whistleblower expansion 
proposed by the Majority is not necessary, nor will it 
accomplish its stated purpose of improving safety. 
Whistleblowers already receive significant protections under 
existing mining and occupational safety laws, including the 
ability to anonymously report safety violations--and rightfully 
so. But H.R. 5663 appears to treat whistleblowers as the only 
line of defense against safety violations, using valid 
whistleblower protections as an opening to insert vast new 
litigation opportunities.
    An example of current legal protections against retaliation 
for publicly voicing safety concerns can be found in Section 
105(c) of the Mine Safety and Health Act of 1977. Under that 
provision, mine operators cannot retaliate against miners for 
making safety complaints. This provision was exercised recently 
in a case involving a miner who publicly spoke out against 
safety practices and was terminated by the mine operator for 
alleged safety violations. The Labor Secretary prevailed on a 
motion for temporary reinstatement of the miner, suggesting 
that current laws are effectively protecting employees who 
voice safety-related concerns and raising a serious question as 
to the need for an expansion.\15\ Further, because of a last-
minute amendment that excludes certain classes of mines from 
the requirements of H.R. 5663, workers at those mines would not 
be able to avail themselves of the Majority's new whistleblower 
protections. It stands to reason that all miners should have 
the same protection to report safety violations free from 
retribution; if miners in non-coal/gassy mines are sufficiently 
protected by current law and Republicans believe they are 
protected thanks to the existing statute--miners in coal/gassy 
mines are also well-protected by these laws.
---------------------------------------------------------------------------
    \15\The miner involved, Ricky Lee Campbell, was allegedly 
terminated by Marfork Coal Co. after voicing various safety concerns. 
In a press release commenting on the successful motion for temporary 
reinstatement, the Assistant Secretary of Labor for Mine Safety and 
Health stated that, ``The law is clear in its protections toward miners 
whose actions may lead to retaliation.'' See, MSHA Press Release issued 
on June 17, 2010, at http://www.msha.gov/MEDIA/PRESS/2010/NR100617.asp
---------------------------------------------------------------------------
    Significant protections are also provided under existing 
occupational safety laws, specifically located at Section 11(c) 
of the Occupational Health and Safety Act, 29 U.S.C. Section 
660. In hearings before the Subcommittee on Workforce 
Protections, one witness testified that current law works and 
questioned the need for an expansion to whistleblower 
protections under the OSHA statute:

          I am unaware of any empirical data supporting the 
        assertion that the current statute fails to protect 
        occupational safety and health whistleblowers. Indeed, 
        my concern is that this assumption is supported by 
        nothing more than cherry-picked anecdotes or conclusory 
        assertions that occupational safety and health OSH 
        whistleblowers do not ``win often enough.''\16\
---------------------------------------------------------------------------
    \16\See, Testimony of Lloyd Chinn, Committee on Education and 
Labor, Subcommittee on Workforce Protections Hearing, ``Whistleblower 
and Victim's Rights Provisions of H.R. 2067, the Protecting America's 
Workers Act,'' April 28, 2010.

    The testimony further illustrated that expanding protected 
whistleblower activity may not increase the win rate for 
---------------------------------------------------------------------------
aggrieved workers filing whistleblower claims:

          In fact, although [the Majority's legislation] 
        apparently posits access to the federal courts as a 
        panacea for OSH whistleblowers, there is no reason to 
        believe the ``win'' rate there will be any better than 
        before OSHA. Indeed, in every administrative forum and 
        court system in which I've practiced as an employment 
        lawyer, it has been well understood that, in the 
        aggregate, employment litigation plaintiffs lose more 
        often than they win. This state of affairs is not, in 
        my opinion, because of any particular bias in any of 
        these court or administrative systems against 
        plaintiffs; rather, it is simply because in the context 
        of a particular employment statute, there is some 
        substantial number of meritless claims filed.\17\
---------------------------------------------------------------------------
    \17\Ibid.
---------------------------------------------------------------------------
    At the core of these proposed reforms is a fundamental 
concern whether expanding whistleblower protections will lead 
to increased safety of workers. Testimony received by the 
Committee suggests it will not:

          . . . one would expect (all other things being equal) 
        that inadequate OSH whistleblower protections have led 
        to a less-safe workplace. But Bureau of Labor 
        Statistics data support no such conclusion. According 
        to BLS, both nonfatal injuries as well as fatalities in 
        the workplace have continually declined over the past 
        decade.\18\
---------------------------------------------------------------------------
    \18\Ibid.

    Despite the evidence of adequate whistleblower protections, 
H.R. 5663 significantly expands such protections under mining 
and occupational safety laws for questionable reasons. For 
example, the Majority's bill would create expansive new 
investigation and hearing procedures applicable to 
whistleblower complaints, increase attorney fee awards, and 
give whistleblowers the ability to file suit in federal court 
if they do not receive an administrative decision within 90 
days. Given this relatively short timeframe, it appears 
reasonable to conclude that such deadlines are likely to be 
missed, resulting in more federal court litigation which will 
only serve to raise costs and delay justice. Republicans 
believe there should be a more proactive approach to increase 
worker safety that does not rely on such litigious measures.

H.R. 5663 includes OSHA provisions wholly unrelated to mine safety

    While the title of H.R. 5663 suggests it is intended to 
address mine safety only, Committee Republicans believe the 
scope of the bill goes far beyond its stated purpose. In doing 
so, the bill threatens to negatively affect virtually every 
business in the country. Specifically, Title VII of H.R. 5663 
includes dramatic changes to the Occupational Safety and Health 
Act. Essentially, this title seeks to import into H.R. 5663 
entire sections of H.R. 2067, the Protecting America's Workers 
Act (``PAWA''), a bill focused on an area of law completely 
unrelated to mining safety. Some of the OSH Act changes are 
similar to the provisions discussed above. For example, the 
bill's OSH Act provisions adopt a ``knowing'' liability 
standard, increase criminal and civil penalties, and expand 
protections for whistleblowers. Other changes are unique to the 
OSH Act title, including the requirement of a mandatory 
abatement of alleged safety hazards without regard to due 
process and inclusion of impacted employees or their family 
members in various legal proceedings. At this point, the 
Majority has not exempted any industry from this section of the 
legislation.
    During consideration of the bill, Committee Republicans 
expressed repeated concerns about the far-reaching consequences 
of the proposed changes to the OSH Act, noting the amendments 
envisioned in H.R. 5663 reach almost every private-sector 
employer and worker in this country. Unfortunately, none of the 
provisions directly promote workplace safety, but again focus 
only on punishment in the aftermath of an accident.

Standard of liability

    As discussed previously, H.R. 5663 changes the OSH Act's 
legal standard from ``willful'' to ``knowing,'' a dramatic 
policy change, the ramifications of which are not fully known. 
As noted in testimony received by the Committee, such a change 
could have troubling consequences.

          The expected modifications to PAWA's increase in 
        criminal penalties would change the level of intent 
        necessary for criminal penalties from the current 
        ``willful'' to ``knowing.'' Such a change would upend 
        decades of OSHA law--dating to the passage of the act 
        in 1970 and introduce tremendous uncertainty, further 
        guaranteeing substantial increases in contested cases. 
        While the ``knowing'' standard is used in EPA law, it 
        has not been the standard for OSHA criminal 
        culpability. As there is no further definition in the 
        bill of this standard, employers (and OSHA inspectors) 
        will be left to guess what this means and when it 
        should apply. This is a prescription for utter 
        confusion and legal challenges that will be costly to 
        both the employer and the agency.\19\
---------------------------------------------------------------------------
    \19\See, Testimony of Jonathan L. Snare, Esq., Committee on 
Education and Labor Hearing, ``H.R. 5663, the Miner Safety and Health 
Act of 2010,'' July 13, 2010.
---------------------------------------------------------------------------

Penalties

    Committee Republicans are also concerned by the manner and 
extent to which H.R. 5663 would increase penalties and fines 
assessed under the OSH Act. Not only are the monetary increases 
proposed by the bill significant, these penalties would 
automatically increase every four years to account for 
inflation. We are also troubled by the bill's so-called ``look 
back'' provision, which would effectively permit the Secretary 
of Labor to review an employer's past history of OSHA 
violations and impose significant new penalties if the 
Secretary judges that history to have caused or contributed to 
an employee's death, despite the fact that past violations 
would already have been penalized and adjudicated. Committee 
Republicans share the view that penalties should be retained in 
statute as a deterrent to policies or practices that might put 
workers at risk. Moreover, we are willing to consider whether 
the fines and penalties currently provided for in the OSH Act 
are sufficient. However, we believe the changes proposed in 
H.R. 5663 to be punitive in nature, ignoring recent history 
which has shown a decline in workplace illness and injury rates 
in conjunction with a compliance-based approach to workplace 
safety.

Expansion of whistleblower protections

    Committee Republicans are also troubled by the fact that 
H.R. 5663 seeks to expand whistleblower protections under the 
OSH Act. As with the proposed whistleblower protection 
expansions under the mining provisions of the legislation, we 
are unaware of any compelling evidence suggesting such an 
expanded legal framework is necessary. Indeed, current 
statistics point to the opposite conclusion. In 2008, according 
to statistics provided by OSHA, the agency received 1,388 
whistleblower complaints (commonly referred to as ``11(c) 
cases,'') for the section of the OSH Act under which they are 
brought. Seventy-six percent of those cases were without merit 
(withdrawn or dismissed), and the remainder were settled or 
litigated.\20\ In 2009, OSHA statistics revealed 1205 cases; of 
those, 76 percent again were without merit (dismissed or 
withdrawn) and the remainder were settled or litigated.\21\ 
Committee Republicans believe these figures give credence to 
the notion that the current system of investigating and 
adjudicating OSHA whistleblower complaints is adequate.
---------------------------------------------------------------------------
    \20\See, Committee on Education and Labor, Subcommittee on 
Workforce Protections Hearing, ``Whistleblower and Victim's Rights 
Provisions of H.R. 2067, the Protecting America's Workers Act,'' April 
28, 2010. Item 3, Record Submission, Department of Labor Statistics and 
Outcomes on Whistleblower Cases filed with OSHA, Fiscal Year 2008.
    \21\See, Committee on Education and Labor, Subcommittee on 
Workforce Protections Hearing, ``Whistleblower and Victim's Rights 
Provisions of H.R. 2067, the Protecting America's Workers Act,'' April 
28, 2010. Item 4, Record Submission, OSHA's Actions on 11(c) Cases 
Completed in Fiscal Year 2009.
---------------------------------------------------------------------------

Mandatory Abatement Without Due Process

    Committee Republicans are concerned by the inclusion in 
H.R. 5663 of a new, prompt abatement provision that requires 
costly and disruptive changes be made in the workplace before 
disputes over the validity of the citations are resolved. The 
Majority attempts to draw a parallel to the mining industry and 
its long adhered-to practice of abatement, while adjudication 
of a contested citation is pending. However, expert testimony 
provided to the Committee on this point disputes this notion.

          This provision will reduce or eliminate the ability 
        of an employer to challenge a citation through the 
        OSHRC administrative process by requiring immediate 
        abatement. Immediate abatement is already available 
        through the emergency shutdown mechanism when OSHA 
        identifies an imminent hazard. This provision will also 
        eliminate one source of leverage that OSHA and the 
        Solicitor's Office can use to resolve cases by settling 
        appropriate cases with the requirement of immediate 
        abatement imposed.
          The signaled modification to this mandatory abatement 
        provision which would substitute an employer's ability 
        to suspend abatement while contesting the citation with 
        a higher burden of proof akin to what is required for 
        securing a temporary injunction is simply unjustified 
        and an outrageous trampling of due process rights. 
        Abatement is more than just protecting against a 
        hazard; it is part of accepting responsibility for the 
        violation. Mandating abatement before allowing the 
        employer to exhaust their adjudicative process would be 
        like asking a criminal or civil defendant to pay a fine 
        or serve a sentence before the trial is held.
          In addition, this provision will eliminate OSHA and 
        the Solicitor's Office prosecutorial discretion in 
        handling these contested cases. This provision strikes 
        me as unduly punitive and makes it much more difficult 
        for employers, particularly smaller employers who lack 
        resources, to challenge certain citations which they 
        may believe in good faith are incorrect or improperly 
        imposed by the agency in the first place. By making it 
        harder to settle cases this will increase the rate of 
        contest cases.\22\
---------------------------------------------------------------------------
    \22\See, Testimony of Jonathan L. Snare, Esq., Committee on 
Education and Labor Hearing, ``H.R. 5663, the Miner Safety and Health 
Act of 2010,'' July 13, 2010.

    The mandatory abatement provision, like much of the bill, 
is merely punitive in nature; its disregard for due process 
exposes the Majority's predilection for imposing punishment 
rather than proactively enhancing workplace safety.

                    AMENDMENTS OFFERED IN COMMITTEE

    Given the expansive and unwieldy nature of the underlying 
measure, Committee Republicans sought to refocus the measure on 
the most pressing and well-understood mine safety issues. 
Committee Republicans offered the following amendments.

Republican Substitute

    The Republican substitute would improve mine safety by 
empowering MSHA and holding the agency accountable, identifying 
and punishing bad actors, and modernizing mine safety 
standards. Republicans would provide MSHA the tools it needs 
and has sought in Congressional hearings--a responsive pattern 
of violation system and subpoena power for accident 
investigations. The Republican substitute also mandates that 
MSHA inspect mines at irregular hours, creates an independent 
investigation panel to assess MSHA's activities before and 
during an accident, mandates additional inspector training, and 
reestablishes the conference process. Further, the substitute 
requires penalties if the MSHRC determines a frivolous contest 
had been brought. Finally, the Republican substitute modernizes 
mine safety standards--provisions that would work to improve 
the safety of all miners. A summary of the Republican 
substitute follows.

Enhanced Enforcement

Pattern of violations

    The Republican substitute utilizes the Safe Performance 
Index (SPI)\23\ to draw a bright line for placing perpetually 
unsafe mines in a pattern of violations. If a mine operator 
falls below the identified threshold on the SPI, that operator 
would be placed in POV status and required to submit a 
comprehensive remediation plan to MSHA explaining how the mine 
operator intends to improve safety to get out of POV status. 
While in POV status, a mine would be subject to spot 
inspections.\24\ Such inspections, to take place at irregular 
hours, would focus MSHA's inspectors on the hazardous areas of 
a mine where greater oversight is needed most.
---------------------------------------------------------------------------
    \23\The Safe Performance Index is a matrix created by Dr. Larry 
Greyson to model mine safety. This was discussed at the Committee's 
July 13, 2010 legislative hearing on H.R. 5663.
    \24\30 U.S.C. Sec. 813, Spot Inspections, provides in relevant 
part: (i) Whenever the Secretary finds that a coal or other mine 
liberates excessive quantities of methane or other explosive gases 
during its operations, or that a methane or other gas ignition or 
explosion has occurred in such mine which resulted in death or serious 
injury at any time during the previous five years, or that there exists 
in such mine some other especially hazardous condition, he shall 
provide a minimum of one spot inspection by his authorized 
representative of all or part of such mine during every five working 
days at irregular intervals. For purposes of this subsection, 
``liberation of excessive quantities of methane or other explosive 
gases'' shall mean liberation of more than one million cubic feet of 
methane or other explosive gases during a 24-hour period. When the 
Secretary finds that a coal or other mine liberates more than five 
hundred thousand cubic feet of methane or other explosive gases during 
a 24-hour period, he shall provide a minimum of one spot inspection by 
his authorized representative of all or part of such mine every 10 
working days at irregular intervals. When the Secretary finds that a 
coal or other mine liberates more than two hundred thousand cubic feet 
of methane or other explosive gases during a 24-hour period, he shall 
provide a minimum of one spot inspection by his authorized 
representative of all or part of such mine every 15 working days at 
irregular intervals.
---------------------------------------------------------------------------
    When the Secretary determines that a mine operator has an 
adequately improved SPI and has met all the requirements of the 
remediation plan, the mine shall be notified that it has been 
removed from POV status.

Increased Fines and Penalties

    The Republican substitute increases penalties for 
violations of the Act to include sharp monetary penalties 
coupled with significant jail time, in those instances where a 
mine operator's conduct warrants such punishment.

Advanced Notice of Inspection Penalties

    The Republican substitute ensures that anyone providing 
advance notice of an inspection can only do so at the behest of 
an inspector to facilitate that inspection. Anyone who provides 
advance notice of an inspection with the intent of interfering 
with that inspection would be subject to a fine of $50,000 and 
up to five years imprisonment.

Subpoena Power

    MSHA has continually cited the need for easier access to 
subpoena power to carry out its duties during a mine 
investigation. The Republican substitute provides MSHA the 
appropriate authority to subpoena relevant documents during an 
investigation and ensures that Rule 45 of the Federal Rules of 
Civil Procedure guide the agency's actions in this area.

Strengthened Inspection Authority

    The Republican substitute requires inspectors to perform 
inspections at irregular hours. Currently, MSHA is required to 
inspect underground mines four times per year and surface mines 
two times per year, an important safety and enforcement tool. 
The substitute requires that 30 percent of mandated inspections 
take place on evening and weekend shifts.

Penalty for Frivolous Contests

    The 17,000 case backlog at the MSHRC can be attributed to 
many actions over the last four years. Industry critics argue 
that some mine operators contest citations in order to ``game 
the system'' and delay the payment of penalties or the 
inclusion in a potential POV status. Under the Republican 
substitute, if the Commission determines a contest is frivolous 
it may assess an additional penalty, thereby targeting the few 
operators who may be engaging in dilatory adjudication.

Improved statutory processes

Independent Accident Investigations

    While MSHA is well-equipped in both expertise and 
technology to investigate accidents there are questions about 
the agency's objectivity when examining its own conduct. The 
Republican substitute creates an independent investigation 
panel charged with investigating MSHA's actions in the wake of 
serious mining accidents.

Designation of Miner Representative

    The Republican substitute requires miners to designate a 
representative upon employment; information that will be kept 
on file by the mine operator in the event that miner is 
entrapped or otherwise prevented from action on his own behalf. 
This ensures the miner's wishes are represented and insulates 
family members from having to determine who is the ``next of 
kin'' in distressing situations.

Reestablishment of Conference Process for Contests

    Previous actions by MSHA suspended the conference process 
for resolving contested citations, a major contributing factor 
to the overwhelming case backlog at the MSHRC. The Republican 
substitute reinstates and improves the conference process while 
making it a statutory requirement.

Modernizing mine safety standards

Rock Dust Standards

    The Republican substitute implements a new rock dusting 
standard, which as proposed by NIOSH and reflected in the 
Republican substitute, will decrease the explosivity of coal 
dust in mine intakes. Further, NIOSH has developed a real-time 
coal dust explosivity meter (CDEM). The substitute encourages 
the use of the NIOSH developed CDEM to test the explosivity of 
the coal dust/rock dust mixture to ensure no explosive hazard 
exists.

Personal Dust Monitors

    The UMWA and industry agreed to personal dust monitor 
protocols in a white paper dated April 4, 2008. The Republican 
substitute requires the Secretary to issue a standard based on 
the recommendations of this joint labor-industry task force.

Risk Analysis Pilot Program

    The Republican substitute requires NIOSH to conduct a 
survey of international mining practices with respect to 
incident planning with a particular focus on Australia's risk 
assessment approach. NIOSH will publish these protocols and 
work with mine operators to utilize the risk assessment tool to 
improve mine safety.

Training Requirement

    Currently, MSHA's inspectors are required to undergo two 
weeks of training every two years and one week of specified 
training every year. Earlier this year, the Inspector General 
determined that more than 50 percent of the inspectors 
interviewed had not undergone the required retraining.\25\ The 
Republican substitute corrects the training deficiency 
identified in the IG report by increasing mandatory training 
requirements.
---------------------------------------------------------------------------
    \25\See, ``Journeyman Mine Inspectors Do Not Receive Required 
Periodic Retraining,'' Department of Labor, Inspector General Office of 
Audit, March 30, 2010. Report Number 05-10-001-06-001.
---------------------------------------------------------------------------

Studies

Study Regarding Establishment of a Technical Disputes Panel

    The Republican substitute calls for a study to examine the 
issues involved in technical mine operation disputes and 
determines whether a technical disputes panel could facilitate 
and expedite the resolution of these disputes. Further, the 
study will include recommendations about the role such a panel 
would play in conjunction with the MSHRC.

GAO Study on Transfer of Authority of NIOSH to DOL

    NIOSH was designed to research the many safety and health 
issues facing our nation's workers. Given the inherent 
relationship between NIOSH and the Department of Labor, 
questions have arisen about the placement of NIOSH outside the 
purview of the Secretary of Labor. The substitute requires the 
General Accountability Office (GAO) to study the merits of 
moving NIOSH within the Department and report to Congress if 
such a move would improve worker safety and health.
    The Republican substitute was defeated on a party line vote 
of 30 to 17.

Amendment to strike Title VII of the underlying bill

    Rep. McMorris Rodgers (R-WA) offered an amendment to strike 
Title VII of the legislation. This amendment would have removed 
the expansive and unwarranted amendments to the Occupational 
Safety and Health Act. Committee Republicans support proactive 
safety measures that prevent workplace illness and injury. The 
punitive nature of Title VII of the bill does nothing to 
improve safety, only implementing harsh penalties after an 
accident or injury has occurred.
    More than 230 organizations supported Rep. McMorris 
Rodgers' position that Title VII was inappropriate public 
policy.

          The members of the Coalition for Workplace Safety are 
        committed to seeking and advocating for new ways to 
        continually improve safety in the workplace. 
        Unfortunately, our position as expressed at the July 13 
        hearing has not changed and we maintain our strong 
        belief that H.R. 5663, as introduced, will not improve 
        safety but will instead create greater cost, litigation 
        and hamper job creation. We urge the committee to not 
        approve this bill.\26\
---------------------------------------------------------------------------
    \26\Letter on file with the Committee.

    This amendment was defeated on a party line vote of 30 to 
17.

Amendment to delete the adoption of a ``knowing'' intent standard

    Rep. Tom Price (R-GA) offered an amendment to strike the 
``knowing'' intent standard that would apply to violations in 
both the mining and occupational safety sections of the bill 
(Titles III and VII). Specifically, the amendment would have 
removed provisions that are unduly vague and punitive, are not 
likely to yield improvements in mine and workplace safety, and 
would result in an unwarranted increase in liability and 
litigation applicable to a broad range of mine operators, 
businesses, corporate officers, agents and employees.
    The amendment was defeated on a party line vote of 30 to 
17.

                               CONCLUSION

    As a matter of public policy, H.R. 5663 falls well short of 
its stated purpose--improving the safety and health of American 
miners. It creates a system that fails to protect surface 
miners and certain metal/nonmetal miners--as acknowledged by 
the President,\27\ the Majority party in Congress,\28\ and the 
Assistant Secretary of Labor for Mine Safety and Health.\29\ As 
the Majority's own Committee report notes, ``In the last 
decade, over 600 miners have been killed while working in coal 
and metal/non-metal mines, including 190 underground coal 
miners.'' Clearly, the risks to miners are not limited solely 
to the underground coal/gassy mines affected by this 
legislation. If, as asserted by the Majority, the POV system is 
broken, it must be repaired for all mines, not just coal mines. 
If the backlog at the Mine Safety and Health Review Commission 
is broken, it must be repaired for all mine operators, not just 
coal mine operators. Compounding the inexplicable establishment 
of a dual system of mine safety, is the fact that at its core, 
H.R. 5663 fails to focus on those issues all parties to this 
debate agree are in need of attention. Instead, H.R. 5663 
reflects a heavy-handed approach more focused on punishing mine 
operators than addressing identifiable solutions to prevent 
mining accidents in the first place.
---------------------------------------------------------------------------
    \27\``This isn't just about a single mine. It's about all of our 
mines.'' See Remarks by the President on Mine Safety, April 15, 2010 
available at www.whitehouse.gov.
    \28\``Chairman Miller has said this backlog is unreasonable and 
harms the safety of American miners,'' Democrats to crack down on 
mining firms that avoid safety penalties. The Hill. April 8, 2010.
    \29\``As I have said repeatedly, the current system is broken. As I 
have said on many occasions, we need to fix the pattern of violation 
system.'' Assistant Secretary Joe Main, Hearing on ``H.R. 5663, Mine 
Safety and Health Act'' July 13, 2010.
---------------------------------------------------------------------------
    H.R. 5663 also fails because it includes provisions wholly 
unrelated to mining or mine safety. In terms of workers' 
safety, the bill's wholesale changes to the Occupational Safety 
and Health Act are perhaps best described as ``subtraction by 
addition,'' as they make federal workplace safety law less 
navigable and mining reforms less focused in a bill ostensibly 
intended to improve mine safety. As with so much of the bill, 
these provisions appear premised on the notion of imposing 
punishment rather than improving workplace safety.
    Republicans have always held to the tenet that one 
workplace death is one too many. We also believe proactive 
safety policies that are practiced everyday will bring workers 
home to their families at the end of every shift. As such, we 
will continue to seek policy changes that result in real 
improvements in worker safety and health and we will resist 
those proposals predicated solely on imposing punishment after 
the fact. It is with these guiding principles in mind that we 
urge our colleagues to reject H.R. 5663 when it reaches the 
floor of the House of Representatives in favor of a more 
targeted, thoughtful, and informed approach to miner safety.

                                   John Kline.
                                   Thomas E. Petri.
                                   Howard P. ``Buck'' McKeon.
                                   Judy Biggert.
                                   Todd Russell Platts.
                                   Joe Wilson.
                                   Cathy McMorris Rodgers.
                                   Rob Bishop.
                                   Brett Guthrie.
                                   Bill Cassidy.
                                   Tom McClintock.
                                   David P. Roe.
                                   Glenn Thompson.