II 

115TH CONGRESS 

1ST SESSION S. 854 

To improve compliance with mine safety and health laws, empower miners 

to raise safety concerns, prevent future mine tragedies, and for other 

purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 5 (legislative day, APRIL 4), 2017 

Mr. CASEY (for himself, Mr. MANCHIN, and Mr. BROWN) introduced the following bill; which was read twice and referred to the Committee on 

Health, Education, Labor, and Pensions 

A BILL 

To improve compliance with mine safety and health laws, 

empower miners to raise safety concerns, prevent future 

mine tragedies, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Robert C. Byrd Mine Safety Protection Act of 2017’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. References. 


SSpencer on DSK4SPTVN1PROD with BILLS
2 

•S 854 IS

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. Procedures and criteria for determining a pattern of violations. 

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 program or plan. 

Sec. 206. GAO study on MSHA underground 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—MINERS’ RIGHTS AND PROTECTIONS 

Sec. 401. Protection from retaliation. 

Sec. 402. Protection from loss of pay. 

Sec. 403. Underground coal miner employment standard for mines with patterns of violations. 

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. Study on respirable dust standards. 

Sec. 505. Refresher training on miners’ rights and responsibilities. 

Sec. 506. Authority to mandate additional training. 

Sec. 507. Brookwood-Sago Mine Safety Grants. 

Sec. 508. Certification of personnel. 

Sec. 509. Electronic records requirement. 

TITLE VI—ADDITIONAL MINE SAFETY PROVISIONS 

Sec. 601. Definitions. 

Sec. 602. Assistance to States. 

Sec. 603. Double encumbrance; succession plan. 

TITLE VII—AMENDMENTS TO THE OCCUPATIONAL SAFETY AND 

HEALTH ACT OF 1970 

Sec. 701. Coverage of public employees. 

Sec. 702. Enhanced protections from retaliation. 

Sec. 703. Victims’ rights. 


SSpencer on DSK4SPTVN1PROD with BILLS
3 

•S 854 IS

Sec. 704. Correction of serious, willful, or repeated violations pending contest 

and procedures for a stay. 

Sec. 705. Conforming amendments. 

Sec. 706. Civil penalties. 

Sec. 707. Criminal penalties. 

Sec. 708. Penalties. 

Sec. 709. Authorization of cooperative agreements by NIOSH Office of Mine 

Safety and Health. 

Sec. 710. Effective date. 

1 SEC. 2. REFERENCES. 

2 Except as otherwise expressly provided, whenever in 

3 this Act an amendment is expressed as an amendment to 

4 a section or other provision, the reference shall be consid5 ered to be made to a section or other provision of the Fed6 eral Mine Safety and Health Act of 1977 (30 U.S.C. 801 

7 et seq.). 

8 TITLE I—ADDITIONAL INSPEC9 TION AND INVESTIGATION 

10 AUTHORITY 

11 SEC. 101. INDEPENDENT ACCIDENT INVESTIGATIONS. 

12 (a) IN GENERAL.—Section 103(b) (30 U.S.C. 

13 813(b)) is amended— 

14 (1) by striking ‘‘(b) For the purpose’’ and in15 serting the following: 

16 ‘‘(b) ACCIDENT INVESTIGATIONS.— 

17 ‘‘(1) IN GENERAL.—For all accident investiga18 tions under this Act, the Secretary shall— 

19 ‘‘(A) determine why the accident occurred; 

20 ‘‘(B) determine whether there were viola21 tions of law, mandatory health or safety standVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
4 

•S 854 IS

1 ards, or other requirements, and if there is evi2 dence of conduct that may constitute a violation 

3 of Federal criminal law, the Secretary may 

4 refer such evidence to the Attorney General; 

5 and 

6 ‘‘(C) make recommendations to avoid any 

7 recurrence. 

8 ‘‘(2) INDEPENDENT ACCIDENT INVESTIGA9 TIONS.— 

10 ‘‘(A) IN GENERAL.—There shall be, in ad11 dition to an accident investigation under para12 graph (1), an independent investigation by an 

13 independent investigation panel (referred to in 

14 this subsection as the ‘Panel’) appointed under 

15 subparagraph (B) for— 

16 ‘‘(i) any accident involving 3 or more 

17 deaths; or 

18 ‘‘(ii) any accident that is of such se19 verity or scale for potential or actual harm 

20 that, in the opinion of the Secretary of 

21 Health and Human Services, the accident 

22 merits an independent investigation. 

23 ‘‘(B) APPOINTMENT.— 

24 ‘‘(i) IN GENERAL.—As soon as prac25 ticable after an accident described in subVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
5 

•S 854 IS

1 paragraph (A), the Secretary of Health 

2 and Human Services shall appoint 5 mem3 bers for the Panel required under this 

4 paragraph from among individuals who 

5 have expertise in accident investigations, 

6 mine engineering, or mine safety and 

7 health that is relevant to the particular in8 vestigation. 

9 ‘‘(ii) CHAIRPERSON.—The Panel shall 

10 include, and be chaired by, a representative 

11 from the Office of Mine Safety and Health 

12 Research of the National Institute for Oc13 cupational Safety and Health (referred to 

14 in this subsection as ‘NIOSH’). 

15 ‘‘(iii) CONFLICTS OF INTEREST.— 

16 Panel members, and staff and consultants 

17 assisting the Panel with an investigation, 

18 shall be free from conflicts of interest with 

19 regard to the investigation, and be subject 

20 to the same standards of ethical conduct 

21 for persons employed by the Secretary of 

22 Health and Human Services. 

23 ‘‘(iv) COMPOSITION.—The Secretary 

24 of Health and Human Services— 


SSpencer on DSK4SPTVN1PROD with BILLS
6 

•S 854 IS

1 ‘‘(I) shall appoint as members of 

2 the Panel— 

3 ‘‘(aa) 1 operator of a mine 

4 or individual representing mine 

5 operators; and 

6 ‘‘(bb) 1 representative of a 

7 labor organization that rep8 resents miners; and 

9 ‘‘(II) may not appoint more than 

10 1 of either type of individuals de11 scribed in items (aa) and (bb) as 

12 members of the Panel. 

13 ‘‘(v) STAFF AND EXPENSES.—The Di14 rector of NIOSH (referred to in this sub15 section as the ‘Director’) shall designate 

16 NIOSH staff to facilitate the work of the 

17 Panel. The Director may accept as staff 

18 personnel on detail from other Federal 

19 agencies or reemploy annuitants. The de20 tail of personnel under this paragraph may 

21 be on a non-reimbursable basis, and such 

22 detail shall be without interruption or loss 

23 of civil service status or privilege. The Di24 rector shall have the authority to procure 

25 on behalf of the Panel such materials, supVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
7 

•S 854 IS

1 plies or services, including technical ex2 perts, as requested in writing by a majority 

3 of the Panel. 

4 ‘‘(vi) COMPENSATION AND TRAVEL.— 

5 All members of the Panel who are officers 

6 or employees of the United States shall 

7 serve without compensation in addition to 

8 that received for their services as officers 

9 or employees of the United States. Each 

10 Panel member who is not an officer or em11 ployee of the United States shall be com12 pensated at a rate equal to the daily equiv13 alent of the annual rate of basic pay pre14 scribed for level IV of the Executive Sched15 ule under section 5315 of title 5, United 

16 States Code, for each day (including travel 

17 time) during which such member is en18 gaged in the performance of duties of the 

19 Panel. The members of the Panel shall be 

20 allowed travel expenses, including per diem 

21 in lieu of subsistence, at rates authorized 

22 for employees of agencies under subchapter 

23 I of chapter 57 of title 5, United States 

24 Code, while away from their homes or regVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
8 

•S 854 IS

1 ular places of business in the performance 

2 of services for the Panel. 

3 ‘‘(C) DUTIES.—The Panel shall— 

4 ‘‘(i) assess and identify any factors 

5 that caused the accident, including defi6 ciencies in safety management systems, 

7 regulations, enforcement, industry prac8 tices or guidelines, or organizational fail9 ures; 

10 ‘‘(ii) identify and evaluate any con11 tributing actions or inactions of— 

12 ‘‘(I) the operator; 

13 ‘‘(II) any contractors or other 

14 persons engaged in mining-related 

15 functions at the site; 

16 ‘‘(III) any State agency with 

17 oversight responsibilities; 

18 ‘‘(IV) any agency or office within 

19 the Department of Labor; 

20 ‘‘(V) the Federal Mine Safety 

21 and Health Review Commission; or 

22 ‘‘(VI) any other person or entity 

23 (including equipment manufacturers); 


SSpencer on DSK4SPTVN1PROD with BILLS
9 

•S 854 IS

1 ‘‘(iii) review the determinations and 

2 recommendations of the Secretary under 

3 paragraph (1); 

4 ‘‘(iv) prepare a report that— 

5 ‘‘(I) includes the findings regard6 ing the causal factors described in 

7 clauses (i) and (ii); 

8 ‘‘(II) identifies any strengths and 

9 weaknesses in the Secretary’s inves10 tigation; and 

11 ‘‘(III) includes recommendations, 

12 including interim recommendations 

13 where appropriate, to industry, labor 

14 organizations, State and Federal 

15 agencies, or Congress, regarding pol16 icy, regulatory, enforcement, adminis17 trative, or other changes, which, in 

18 the judgment of the Panel, would pre19 vent a recurrence at other mines; and 

20 ‘‘(v) publish such findings and rec21 ommendations (excluding any portions 

22 which the Attorney General requests that 

23 the Secretary withhold in relation to a 

24 criminal referral) and hold public meetings 

25 to inform the mining community and famiVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
10 

•S 854 IS

1 lies of affected miners of the Panel’s find2 ings and recommendations. 

3 ‘‘(D) HEARINGS; APPLICABILITY OF CER4 TAIN FEDERAL LAW.—The Panel shall have the 

5 authority to conduct public hearings or meet6 ings, but shall not be subject to the Federal Ad7 visory Committee Act (5 U.S.C. App.). All pub8 lic hearings of the Panel shall be subject to the 

9 requirements under section 552b of title 5, 

10 United States Code. 

11 ‘‘(E) MEMORANDUM OF UNDER12 STANDING.—Not later than 90 days after the 

13 date of enactment of the Robert C. Byrd Mine 

14 Safety Protection Act of 2017, the Secretary of 

15 Labor and the Secretary of Health and Human 

16 Services shall conclude and publically issue a 

17 memorandum of understanding that— 

18 ‘‘(i) outlines administrative arrange19 ments which will facilitate a coordination 

20 of efforts between the Secretary of Labor 

21 and the Panel, ensures that such Sec22 retary’s investigation under paragraph (1) 

23 is not delayed or otherwise compromised by 

24 the activities of the Panel, and establishes 


SSpencer on DSK4SPTVN1PROD with BILLS
11 

•S 854 IS

1 a process to resolve any conflicts between 

2 such investigations; 

3 ‘‘(ii) ensures that Panel members or 

4 staff will be able to participate in inves5 tigation activities (such as mine inspections 

6 and interviews) related to the Secretary of 

7 Labor’s investigation and will have full ac8 cess to documents that are assembled or 

9 produced in such investigation, and en10 sures that the Secretary of Labor will 

11 make available to the Panel all of the au12 thority provided under this section to such 

13 Secretary relating to obtaining information 

14 and witnesses, which may be requested by 

15 the Panel; and 

16 ‘‘(iii) establishes such other arrange17 ments as are necessary to implement this 

18 paragraph. 

19 ‘‘(F) PROCEDURES.—Not later than 90 

20 days after the date of enactment of the Robert 

21 C. Byrd Mine Safety Protection Act of 2017, 

22 the Secretary of Health and Human Services 

23 shall establish procedures to ensure the consist24 ency and effectiveness of Panel investigations. 

25 In establishing such procedures, such Secretary 


SSpencer on DSK4SPTVN1PROD with BILLS
12 

•S 854 IS

1 shall consult with independent safety investiga2 tion agencies, sectors of the mining industry, 

3 representatives of miners, families of miners in4 volved in fatal accidents, State mine safety 

5 agencies, and mine rescue organizations. Such 

6 procedures shall include— 

7 ‘‘(i) authority for the Panel to use evi8 dence, samples, interviews, data, analyses, 

9 findings, or other information gathered by 

10 the Secretary of Labor, as the Panel deter11 mines valid; 

12 ‘‘(ii) provisions to ensure confiden13 tiality if requested by any witness, to the 

14 extent permitted by law, and prevent con15 flicts of interest in witness representation; 

16 and 

17 ‘‘(iii) provisions for preservation of 

18 public access to the Panel’s records 

19 through the Secretary of Health and 

20 Human Services. 

21 ‘‘(G) SUBPOENAS; WITNESSES; CON22 TEMPT.— 

23 ‘‘(i) SUBPOENA AUTHORITY.—For the 

24 purpose of making any investigation of any 

25 accident or other occurrence relating to 


SSpencer on DSK4SPTVN1PROD with BILLS
13 

•S 854 IS

1 health or safety in a coal or other mine 

2 under this paragraph, the Director shall at 

3 the request of a majority of the Panel, or 

4 upon the initiative of such Director, sign 

5 and issue subpoenas for the attendance 

6 and testimony of witnesses and the produc7 tion of relevant papers, books, and docu8 ments, and administer oaths. Witnesses 

9 summoned shall be paid the same fees and 

10 mileage that are paid witnesses in the 

11 courts of the United States. 

12 ‘‘(ii) ADDITIONAL INVESTIGATIVE AU13 THORITY.—In carrying out inspections and 

14 investigations under this paragraph, the 

15 staff of the Director or Panel and attor16 neys representing the Director or Panel 

17 are authorized to question any individual 

18 privately. Under this subparagraph, any 

19 individual who is willing to speak with or 

20 provide a statement to the Director or 

21 Panel’s staff or their attorneys, may do so 

22 without the presence, involvement, or 

23 knowledge of the operator or the operator’s 

24 agents or attorneys. The Director or Panel 

25 shall keep the identity of an individual proVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
14 

•S 854 IS

1 viding such a statement confidential to the 

2 extent permitted by law. Nothing in this 

3 paragraph prevents any individual from 

4 being represented by that individual’s per5 sonal attorney or other representative. 

6 ‘‘(3) POWERS AND PROCESSES.—For the pur7 pose’’; and 

8 (2) by striking ‘‘give testimony before the Sec9 retary or to appear and produce documents before 

10 the Secretary’’ and inserting ‘‘give testimony before 

11 the Secretary (or, in the case of a subpoena under 

12 paragraph (2)(G), the Director or Panel) and 

13 produce documents before the Secretary (or, in such 

14 case, the Director or Panel)’’. 

15 (b) REPORTING REQUIREMENTS.—Section 511(a) 

16 (30 U.S.C. 958(a)) is amended by inserting after ‘‘501,’’ 

17 the following: ‘‘the status of implementation of rec18 ommendations from each independent investigation panel 

19 under section 103(b)(2) received in the preceding 5 

20 years,’’. 

21 SEC. 102. SUBPOENA AUTHORITY AND MINER RIGHTS DUR22 ING INSPECTIONS AND INVESTIGATIONS. 

23 Section 103(b) (30 U.S.C. 813(b)), as so amended, 

24 is further amended by adding at the end the following: 


SSpencer on DSK4SPTVN1PROD with BILLS
15 

•S 854 IS

1 ‘‘(4) ADDITIONAL POWERS.—In carrying out in2 spections and investigations under this subsection, 

3 authorized representatives of the Secretary and at4 torneys representing the Secretary are authorized to 

5 question any individual privately. Under this section, 

6 any individual who is willing to speak with or pro7 vide a statement to such authorized representatives 

8 or attorneys representing the Secretary may do so 

9 without the presence, involvement, or knowledge of 

10 the operator or the operator’s agents or attorneys. 

11 The Secretary shall keep the identity of an indi12 vidual providing such a statement confidential to the 

13 extent permitted by law. Nothing in this paragraph 

14 prevents any individual from being represented by 

15 that individual’s personal attorney or other rep16 resentative. 

17 ‘‘(5) AUTHORIZATION OF APPROPRIATIONS.— 

18 There is authorized to be appropriated to carry out 

19 this subsection such sums as may be necessary.’’. 

20 SEC. 103. DESIGNATION OF MINER REPRESENTATIVE. 

21 Section 103(f) (30 U.S.C. 813(f)) is amended by in22 serting before the last sentence the following: ‘‘If any 

23 miner is entrapped, disabled, killed, or otherwise prevented 

24 as the result of an accident in such mine from designating 

25 such a representative directly, such miner’s closest relative 


SSpencer on DSK4SPTVN1PROD with BILLS
16 

•S 854 IS

1 may act on behalf of such miner in designating such a 

2 representative. If any miner is not currently working in 

3 such mine as the result of an accident in such mine, but 

4 would be currently working in such mine but for such acci5 dent, such miner may designate such a representative. A 

6 representative of miners shall have the right to participate 

7 in any accident investigation the Secretary initiates pursu8 ant to subsection (b), including the right to participate 

9 in investigative interviews and to review all relevant pa10 pers, books, documents, and records produced in connec11 tion with the accident investigation, unless the Secretary, 

12 in consultation with the Attorney General, excludes rep13 resentatives of miners from the investigation on the 

14 grounds that inclusion would interfere with or adversely 

15 impact a criminal investigation that is pending or under 

16 consideration.’’. 

17 SEC. 104. ADDITIONAL AMENDMENTS RELATING TO IN18 SPECTIONS AND INVESTIGATIONS. 

19 (a) HOURS OF INSPECTIONS.—Section 103(a) (30 

20 U.S.C. 813(a)) is amended by inserting after the third 

21 sentence the following: ‘‘Such inspections shall be con22 ducted during the various shifts and days of the week dur23 ing which miners are normally present in the mine to en24 sure that the protections of this Act are afforded to all 

25 miners working all shifts.’’. 


SSpencer on DSK4SPTVN1PROD with BILLS
17 

•S 854 IS

1 (b) REVIEW OF PATTERN OF VIOLATIONS.—Section 

2 103(a) (30 U.S.C. 813(a)), as so amended, is further 

3 amended by inserting before the last sentence the fol4 lowing: ‘‘Upon request by an operator or authorized rep5 resentative of such operator, during the course of the in6 spections required to carry out the requirements of clauses 

7 (3) and (4) or (at the discretion of the Secretary) during 

8 the pre-inspection conference, the Secretary shall review 

9 with the appropriate mine officials the Secretary’s most 

10 recent determination regarding whether such operator has 

11 a pattern of violations under section 104(e) for the appli12 cable coal or other mine.’’. 

13 (c) INJURY AND ILLNESS REPORTING.—Section 

14 103(d) (30 U.S.C. 813(d)) is amended by striking the last 

15 sentence and inserting the following: ‘‘The records to be 

16 kept and made available by the operator of the mine shall 

17 include man-hours worked, and occupational injuries and 

18 illnesses, of the miners employed by, or under the direction 

19 or authority of, such operator, and shall be maintained 

20 separately for each mine and be reported at a frequency 

21 determined by the Secretary, but not less than annually. 

22 Independent contractors (within the meaning of section 

23 3(d)) shall be responsible for reporting accidents, occupa24 tional injuries and illnesses, and man-hours worked for 

25 each mine with respect to the miners in their employ or 


SSpencer on DSK4SPTVN1PROD with BILLS
18 

•S 854 IS

1 under their direction or authority. Such independent con2 tractors shall so report at a frequency determined by the 

3 Secretary, but not less than annually. Reports or records 

4 of operators required and submitted to the Secretary 

5 under this subsection shall be signed and certified as accu6 rate and complete by a knowledgeable and responsible per7 son possessing a certification, registration, qualification, 

8 or other approval under section 118. Knowingly falsifying 

9 such reports or records shall be grounds for revoking such 

10 certification, registration, qualification, or other approval 

11 under the standards established under subsection (b)(1) 

12 of such section.’’. 

13 (d) ORDERS FOLLOWING AN ACCIDENT.—Section 

14 103(k) (30 U.S.C. 813(k)) is amended by striking ‘‘, when 

15 present,’’. 

16 (e) CONFLICT OF INTEREST IN THE REPRESENTA17 TION OF MINERS.—Section 103(a) (30 U.S.C. 813(a)), as 

18 amended by this section, is further amended by adding 

19 at the end the following: ‘‘During inspections and inves20 tigations under this section, and during any litigation 

21 under this Act, no attorney shall represent or purport to 

22 represent both the operator of a coal or other mine and 

23 any other individual, unless such individual has knowingly 

24 and voluntarily waived all actual and reasonably foresee25 able conflicts of interest resulting from such representaVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
19 

•S 854 IS

1 tion. The Secretary is authorized to take such actions as 

2 the Secretary considers appropriate to ascertain whether 

3 such individual has knowingly and voluntarily waived all 

4 such conflicts of interest. If the Secretary finds that such 

5 an individual cannot be represented adequately by such 

6 an attorney due to such conflicts of interest, the Secretary 

7 may petition the appropriate United States district court 

8 which shall have jurisdiction to disqualify such attorney 

9 as counsel to such individual in the matter. The Secretary 

10 may make such a motion as part of an ongoing related 

11 civil action or as a miscellaneous action.’’. 

12 TITLE II—ENHANCED 

13 ENFORCEMENT AUTHORITY 

14 SEC. 201. TECHNICAL AMENDMENT. 

15 Section 104(d)(1) (30 U.S.C. 814(d)(1)) is amend16 ed— 

17 (1) in the first sentence— 

18 (A) by striking ‘‘any mandatory health or 

19 safety standard’’ and inserting ‘‘any provision 

20 of this Act, including any mandatory health or 

21 safety standard or regulation promulgated 

22 under this Act’’; and 

23 (B) by striking ‘‘such mandatory health or 

24 safety standards’’ and inserting ‘‘such proviVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
20 

•S 854 IS

1 sions, regulations, or mandatory health or safe2 ty standards’’; and 

3 (2) in the second sentence, by striking ‘‘any 

4 mandatory health or safety standard’’ and inserting 

5 ‘‘any provision of this Act, including any mandatory 

6 health or safety standard or regulation promulgated 

7 under this Act,’’. 

8 SEC. 202. PROCEDURES AND CRITERIA FOR DETERMINING 

9 A PATTERN OF VIOLATIONS. 

10 Section 104(e)(4) is amended to read as follows: 

11 ‘‘(4) The criteria for determining when a pat12 tern of violations of mandatory health or safety 

13 standards exists, and the requirements for the 

14 issuance and termination of notice of a pattern of 

15 violations, shall be the criteria and requirements in 

16 the regulations promulgated by the Secretary under 

17 part 104 of chapter I of title 30, Code of Federal 

18 Regulations, as published on January 23, 2013.’’. 

19 SEC. 203. INJUNCTIVE AUTHORITY. 

20 Section 108(a)(2) (30 U.S.C. 818(a)(2)) is amended 

21 by striking ‘‘a pattern of violation of’’ and all that follows 

22 through the period and inserting ‘‘a course of conduct that 

23 in the judgment of the Secretary constitutes a continuing 

24 hazard to the health or safety of miners, including violaVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
21 

•S 854 IS

1 tions of this Act or of mandatory health or safety stand2 ards or regulations under this Act.’’. 

3 SEC. 204. REVOCATION OF APPROVAL OF PLANS. 

4 Section 105 (30 U.S.C. 815) is amended— 

5 (1) by redesignating subsection (d) as sub6 section (e); 

7 (2) in subsection (a), by striking ‘‘subsection 

8 (d)’’ and inserting ‘‘subsection (e)’’; and 

9 (3) by inserting after subsection (c) the fol10 lowing: 

11 ‘‘(d) REVOCATION OF APPROVAL OF PROGRAMS OR

12 PLANS.— 

13 ‘‘(1) REVOCATION.—If the Secretary finds that 

14 any program or plan of an operator, or part thereof, 

15 that was approved by the Secretary under this Act 

16 is based on inaccurate information or that cir17 cumstances that existed when such program or plan 

18 was approved have materially changed and that con19 tinued operation of such mine or an area of such 

20 mine under such program or plan constitutes a haz21 ard to the safety or health of miners, the Secretary 

22 shall revoke the approval of such program or plan. 

23 ‘‘(2) WITHDRAWAL ORDERS.—Upon revocation 

24 of the approval of a program or plan under para25 graph (1), the Secretary may immediately issue an 


SSpencer on DSK4SPTVN1PROD with BILLS
22 

•S 854 IS

1 order requiring the operator to cause all persons, ex2 cept those persons referred to in section 104(c), to 

3 be withdrawn from such mine or an area of such 

4 mine, and to be prohibited from entering such mine 

5 or such area, until the operator has submitted and 

6 the Secretary has approved a new plan.’’. 

7 SEC. 205. CHALLENGING A DECISION TO APPROVE, MOD8 IFY, OR REVOKE A COAL OR OTHER MINE 

9 PROGRAM OR PLAN. 

10 Section 105(e) (30 U.S.C. 815(e)), as so redesignated 

11 by section 204(1), is amended by adding at the end the 

12 following: ‘‘In any proceeding in which a party challenges 

13 the Secretary’s decision whether to approve, modify, or re14 voke a coal or other mine program or plan under this Act, 

15 the Commission shall affirm the Secretary’s decision un16 less the challenging party establishes that such decision 

17 was arbitrary, capricious, an abuse of discretion, or other18 wise not in accordance with law.’’. 

19 SEC. 206. GAO STUDY ON MSHA UNDERGROUND MINE PLAN 

20 APPROVAL. 

21 Not later than 1 year after the date of enactment 

22 of this Act, the Comptroller General of the United States 

23 shall provide a report to Congress on the timeliness of ap24 proval by the Mine Safety and Health Administration of 

25 plans, and amendments to such plans, for underground 


SSpencer on DSK4SPTVN1PROD with BILLS
23 

•S 854 IS

1 coal mines under the Federal Mine Safety and Health Act 

2 of 1977 (30 U.S.C. 801 et seq.), including— 

3 (1) factors that contribute to any delays in the 

4 approval of such plans; and 

5 (2) as appropriate, recommendations for im6 proving timeliness of plan review and for achieving 

7 prompt decisions regarding such approval. 

8 TITLE III—PENALTIES 

9 SEC. 301. CIVIL PENALTIES. 

10 (a) TARGETED PENALTIES.—Section 110(b) (30 

11 U.S.C. 820(b)) is amended by adding at the end the fol12 lowing: 

13 ‘‘(3) Any person may be assessed a civil penalty 

14 of not more than $220,000 for— 

15 ‘‘(A) any change to a ventilation system or 

16 ventilation control in a coal or other mine, 

17 where such ventilation system or control is re18 quired by a ventilation plan, safety standard, or 

19 order, and such change is made without prior 

20 approval of the Secretary and diminishes the 

21 level of protection below the minimum require22 ments of the approved ventilation plan or appli23 cable safety standard or order; 


SSpencer on DSK4SPTVN1PROD with BILLS
24 

•S 854 IS

1 ‘‘(B) a violation of a mandatory health or 

2 safety standard requiring rock dusting in a coal 

3 mine; 

4 ‘‘(C) a violation of the prohibition under 

5 section 103 on providing advance notice of an 

6 inspection; or 

7 ‘‘(D) a violation of a mandatory health or 

8 safety standard requiring examinations of work 

9 areas in an underground coal mine.’’. 

10 (b) INCREASED CIVIL PENALTIES FOR PATTERNS OF

11 VIOLATIONS.—Section 110(b) (30 U.S.C. 820(b)), as so 

12 amended, is further amended by adding at the end the 

13 following: 

14 ‘‘(4) Notwithstanding any other provision of this Act, 

15 an operator of a coal or other mine that has established 

16 a pattern of violations under section 104(e) shall be as17 sessed an increased civil penalty for any violation of this 

18 Act, including any mandatory health or safety standard 

19 or regulation promulgated under this Act. Such increased 

20 penalty shall be twice the amount that would otherwise 

21 be assessed for the violation under this Act, including the 

22 regulations promulgated under this Act, subject to the 

23 maximum civil penalty established for the violation under 

24 this Act.’’. 


SSpencer on DSK4SPTVN1PROD with BILLS
25 

•S 854 IS

1 (c) CIVIL PENALTY FOR RETALIATION.—Section 

2 110(a) (30 U.S.C. 820(a)) is amended— 

3 (1) by redesignating paragraph (4) as para4 graph (5); and 

5 (2) by inserting after paragraph (3) the fol6 lowing: 

7 ‘‘(4) If any person violates section 105(c), the Sec8 retary shall propose, and the Commission shall assess, a 

9 civil penalty of not less than $10,000 or more than 

10 $100,000 for the first occurrence of such violation, and 

11 not less than $20,000 or more than $200,000 for any sub12 sequent violation, during any 3-year period.’’. 

13 (d) TECHNICAL AMENDMENT.—Section 110(a)(1) 

14 (30 U.S.C. 820(a)(1)) is amended by inserting ‘‘including 

15 any regulation promulgated under this Act,’’ after ‘‘this 

16 Act,’’. 

17 SEC. 302. CIVIL AND CRIMINAL LIABILITY OF OFFICERS, DI18 RECTORS, AND AGENTS. 

19 Section 110(c) (30 U.S.C. 820(c)) is amended to read 

20 as follows: 

21 ‘‘(c) CIVIL AND CRIMINAL LIABILITY OF OFFICERS, 

22 DIRECTORS, AND AGENTS.— 

23 ‘‘(1) CIVIL PENALTIES.—Whenever an operator 

24 engages in conduct for which the operator is subject 

25 to a civil penalty under this section, any director, ofVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
26 

•S 854 IS

1 ficer, or agent of such operator who knowingly au2 thorizes, orders, or carries out such conduct, or who 

3 knowingly authorizes, orders, or carries out any pol4 icy or practice that results in such conduct (having 

5 reason to believe such a result would occur), shall be 

6 subject to the same civil penalty under this section 

7 as such operator. 

8 ‘‘(2) CRIMINAL PENALTIES.—Whenever an op9 erator engages in conduct for which the operator is 

10 subject to a criminal penalty under subsection (d), 

11 any director, officer, or agent of such operator who 

12 knowingly authorizes, orders, or carries out such 

13 conduct, or who knowingly authorizes, orders, or 

14 carries out a policy or practice that results in such 

15 conduct (knowing that such a result would occur), 

16 shall be subject to the same penalty under para17 graph (1), (2), or (3) of subsection (d) as such oper18 ator.’’. 

19 SEC. 303. CRIMINAL PENALTIES. 

20 (a) IN GENERAL.—Section 110(d) (30 U.S.C. 

21 820(d)) is amended to read as follows: 

22 ‘‘(d) CRIMINAL PENALTIES.— 

23 ‘‘(1) IN GENERAL.—Subject to paragraph (2), 

24 any operator shall, upon conviction, be assessed a 

25 fine of not more than $250,000, imprisoned for not 


SSpencer on DSK4SPTVN1PROD with BILLS
27 

•S 854 IS

1 more than 1 year, or both, if such operator know2 ingly— 

3 ‘‘(A) violates a mandatory health or safety 

4 standard; or 

5 ‘‘(B) violates (or fails or refuses to comply 

6 with) any order issued under section 104 or 

7 107, or any order incorporated in a final deci8 sion issued under this Act (except an order in9 corporated in a decision under subsection (a)(1) 

10 or section 105(c)). 

11 ‘‘(2) PREVIOUS CONVICTION.—Any operator 

12 who commits a violation under paragraph (1) after 

13 having been previously convicted of a violation under 

14 such paragraph and knows or has reason to know 

15 that such subsequent violation has the potential to 

16 expose a miner to a risk of serious injury, serious ill17 ness, or death, shall, upon such subsequent convic18 tion, be fined not more than $1,000,000, or impris19 oned for not more than 5 years, or both. 

20 ‘‘(3) SIGNIFICANT RISK OF SERIOUS INJURY, 

21 SERIOUS ILLNESS, OR DEATH.— 

22 ‘‘(A) IN GENERAL.—Subject to subpara23 graph (B), any operator shall, upon conviction, 

24 be fined not more than $1,000,000 or impris25 oned for not more than 5 years, or both, if such 


SSpencer on DSK4SPTVN1PROD with BILLS
28 

•S 854 IS

1 operator recklessly exposes a miner to a signifi2 cant risk of serious injury, serious illness, or 

3 death, by knowingly— 

4 ‘‘(i) tampering with or disabling a re5 quired safety device (except with express 

6 authorization from the Secretary); 

7 ‘‘(ii) violating a mandatory health or 

8 safety standard; or 

9 ‘‘(iii) violating (or failing or refusing 

10 to comply with) an order issued under sec11 tion 104 or 107, or any order incorporated 

12 in a final decision issued under this Act 

13 (except an order incorporated in a decision 

14 under subsection (a)(1) or section 105(c)). 

15 ‘‘(B) EXCEPTION.—Any operator who com16 mits a violation under subparagraph (A) after 

17 having been previously convicted of a violation 

18 under such subparagraph shall, upon such sub19 sequent conviction, be fined not more than 

20 $2,000,000, or imprisoned for not more than 

21 10 years, or both. 

22 ‘‘(4) INTERFERENCE WITH EMPLOYMENT OR

23 LIVELIHOOD.— 

24 ‘‘(A) IN GENERAL.—Any operator shall be 

25 fined under title 18, United States Code, imVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
29 

•S 854 IS

1 prisoned for not more than 5 years, or both, if 

2 such operator knowingly, and with any intent 

3 described in subparagraph (B), interferes with 

4 the lawful employment or livelihood of a person, 

5 or the spouse, sibling, child, or parent of a per6 son, because such person, spouse, sibling, child, 

7 or parent provides information, in reasonable 

8 belief that such information is true and related 

9 to an apparent health or safety violation (or to 

10 an apparent unhealthy or unsafe condition, pol11 icy, or practice) under this Act, to an author12 ized representative of the Secretary, to a State 

13 or local mine safety or health officer or official, 

14 or to any other law enforcement officer or offi15 cial. 

16 ‘‘(B) INTENT.—The intent required under 

17 subparagraph (A) is the intent to— 

18 ‘‘(i) retaliate against a person, spouse, 

19 sibling, child, or parent described in such 

20 subparagraph; or 

21 ‘‘(ii) prevent such person, spouse, sib22 ling, child, or parent from providing the in23 formation as described in such subpara24 graph.’’. 

25 (b) ADVANCE NOTICE OF INSPECTIONS.— 


SSpencer on DSK4SPTVN1PROD with BILLS
30 

•S 854 IS

1 (1) IN GENERAL.—Section 110(e) (30 U.S.C. 

2 820(e)) is amended to read as follows: 

3 ‘‘(e) ADVANCE NOTICE OF INSPECTIONS.— 

4 ‘‘(1) IN GENERAL.—Subject to paragraph (2), 

5 any person (other than the Secretary of Health and 

6 Human Services with respect to inspections under 

7 clauses (1) and (2) of section 103(a)) who know8 ingly, with the intent to give advance notice of an 

9 inspection conducted, or to be conducted, under this 

10 Act and thereby with the intent to impede, interfere 

11 with, or frustrate such inspection, engages in, or di12 rects another person to engage in, conduct that a 

13 reasonable person would expect to result in such ad14 vance notice, shall be fined under title 18, United 

15 States Code, imprisoned for not more than 5 years, 

16 or both. 

17 ‘‘(2) OFFENSE BY A MINER.—Any miner (other 

18 than a director, officer, or agent of the operator in19 volved) who commits the offense described in para20 graph (1) at the direction of a superior shall be 

21 fined under title 18, United States Code, imprisoned 

22 not more than 1 year, or both, unless such miner 

23 commits a subsequent offense under this subsection 

24 (without regard to whether the offense was com25 mitted at the direction of a superior) in which case 


SSpencer on DSK4SPTVN1PROD with BILLS
31 

•S 854 IS

1 such miner shall be fined for such subsequent of2 fense under title 18, United States Code, imprisoned 

3 for not more than 5 years, or both.’’. 

4 (2) POSTING OF ADVANCE NOTICE PEN5 ALTIES.—Section 109 (30 U.S.C. 819) is amended 

6 by adding at the end the following: 

7 ‘‘(e) POSTING OF ADVANCE NOTICE PENALTIES.— 

8 Each operator of a coal or other mine shall post, on the 

9 bulletin board described in subsection (a) and in a con10 spicuous place near each staffed entrance to the mine 

11 property, a notice stating, in a form and manner to be 

12 prescribed by the Secretary— 

13 ‘‘(1) that it is unlawful under section 110(e) for 

14 any person (other than the Secretary of Health and 

15 Human Services with respect to inspections under 

16 clauses (1) and (2) of section 103(a)), with the in17 tent to impede, interfere with, or frustrate an in18 spection conducted or to be conducted under this 

19 Act, to engage in, or direct another person to engage 

20 in, any conduct that a reasonable person would ex21 pect to result in advance notice of such inspection; 

22 and 

23 ‘‘(2) the maximum penalties for a violation 

24 under section 110(e).’’. 


SSpencer on DSK4SPTVN1PROD with BILLS
32 

•S 854 IS

1 SEC. 304. COMMISSION REVIEW OF PENALTY ASSESS2 MENTS. 

3 Section 110(i) (30 U.S.C. 820(i)) is amended by 

4 striking ‘‘In assessing civil monetary penalties, the Com5 mission shall consider’’ and inserting the following: ‘‘In 

6 any review of a citation and proposed penalty assessment 

7 contested by an operator, the Commission shall assess not 

8 less than the penalty derived by using the same method9 ology (including any point system) prescribed in regula10 tions under this Act, so as to ensure consistency in oper11 ator penalty assessments, except that the Commission may 

12 assess a penalty for less than the amount that would result 

13 from the utilization of such methodology if the Commis14 sion finds that there are extraordinary circumstances. If 

15 there is no such methodology prescribed for a citation or 

16 there are such extraordinary circumstances, the Commis17 sion shall assess the penalty by considering’’. 

18 SEC. 305. DELINQUENT PAYMENTS AND PREJUDGMENT IN19 TEREST. 

20 (a) PRE-FINAL ORDER INTEREST.—Section 110(j) 

21 (30 U.S.C. 820(j)) is amended by striking the second and 

22 third sentences and inserting the following: ‘‘Pre-final 

23 order interest on such penalties shall begin to accrue on 

24 the date the operator contests a citation issued under this 

25 Act, including any mandatory health or safety standard 

26 or regulation promulgated under this Act, and shall end 


SSpencer on DSK4SPTVN1PROD with BILLS
33 

•S 854 IS

1 upon the issuance of the final order. Such pre-final order 

2 interest shall be calculated at the current underpayment 

3 rate determined by the Secretary of the Treasury pursu4 ant to section 6621 of the Internal Revenue Code of 1986, 

5 and shall be compounded daily. Post-final order interest 

6 shall begin to accrue 30 days after the date a final order 

7 of the Commission or the court is issued, and shall be 

8 charged at the rate of 8 percent per annum.’’. 

9 (b) ENSURING PAYMENT OF PENALTIES.— 

10 (1) AMENDMENTS.—Section 110 (30 U.S.C. 

11 820) is further amended— 

12 (A) by redesignating subsection (l) as sub13 section (m); and 

14 (B) by inserting after subsection (k) the 

15 following: 

16 ‘‘(l) ENSURING PAYMENT OF PENALTIES.— 

17 ‘‘(1) DELINQUENT PAYMENT LETTER.—If the 

18 operator of a coal or other mine fails to pay any civil 

19 penalty assessment that has become a final order of 

20 the Commission or a court within 45 days after such 

21 assessment became a final order, the Secretary shall 

22 send the operator a letter advising the operator of 

23 the consequences under this subsection of such fail24 ure to pay. The letter shall also advise the operator 

25 of the opportunity to enter into or modify a payment 


SSpencer on DSK4SPTVN1PROD with BILLS
34 

•S 854 IS

1 plan with the Secretary based upon a demonstrated 

2 inability to pay, the procedure for entering into such 

3 plan, and the consequences of not entering into or 

4 not complying with such plan. 

5 ‘‘(2) WITHDRAWAL ORDERS FOLLOWING FAIL6 URE TO PAY.—If an operator that receives a letter 

7 under paragraph (1) has not paid the assessment by 

8 the date that is 180 days after such assessment be9 came a final order and has not entered into a pay10 ment plan with the Secretary, the Secretary shall 

11 issue an order requiring such operator to cause all 

12 persons, except those referred to in section 104(c), 

13 to be withdrawn from, and to be prohibited from en14 tering, the mine that is covered by the final order 

15 described in paragraph (1), until the operator pays 

16 such assessment in full (including interest and ad17 ministrative costs) or enters into a payment plan 

18 with the Secretary. If such operator enters into a 

19 payment plan with the Secretary and at any time 

20 fails to comply with the terms specified in such pay21 ment plan, the Secretary shall issue an order requir22 ing such operator to cause all persons, except those 

23 referred to in section 104(c), to be withdrawn from 

24 the mine that is covered by such final order, and to 

25 be prohibited from entering such mine, until the opVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
35 

•S 854 IS

1 erator rectifies the noncompliance with the payment 

2 plan in the manner specified in such payment 

3 plan.’’. 

4 (2) APPLICABILITY AND EFFECTIVE DATE.— 

5 The amendments made by paragraph (1) shall apply 

6 to all unpaid civil penalty assessments under the 

7 Federal Mine Safety and Health Act of 1977 (30 

8 U.S.C. 801 et seq.), except that, for any unpaid civil 

9 penalty assessment that became a final order of the 

10 Commission or a court before the date of enactment 

11 of this Act, the time periods under section 110(l) of 

12 the Federal Mine Safety and Health Act of 1977 

13 (30 U.S.C. 820(l)), as so amended, shall be cal14 culated as beginning on the date of enactment of 

15 this Act instead of on the date of the final order. 

16 TITLE IV—MINERS’ RIGHTS AND 

17 PROTECTIONS 

18 SEC. 401. PROTECTION FROM RETALIATION. 

19 Section 105(c) (30 U.S.C. 815(c)) is amended to read 

20 as follows: 

21 ‘‘(c) PROTECTION FROM RETALIATION.— 

22 ‘‘(1) RETALIATION PROHIBITED.— 

23 ‘‘(A) RETALIATION FOR COMPLAINT OR

24 TESTIMONY.—No person shall discharge, or in 

25 any manner discriminate against, cause to be 


SSpencer on DSK4SPTVN1PROD with BILLS
36 

•S 854 IS

1 discharged, cause discrimination against, or 

2 otherwise interfere with the exercise of the stat3 utory rights of, any miner or other employee of 

4 an operator, representative of miners, or appli5 cant for employment at a mine of such operator 

6 (including the spouse, sibling, child, or parent 

7 of such miner, employee, representative, or ap8 plicant, if such spouse, sibling, child, or parent 

9 is employed or applying for employment at a 

10 mine under the control of such operator)— 

11 ‘‘(i) because such miner, employee, 

12 representative, or applicant— 

13 ‘‘(I) has filed or made a com14 plaint, or is about to file or make a 

15 complaint, including a complaint noti16 fying such operator or the operator’s 

17 agent, or the representative of the 

18 miners at such mine, of an alleged 

19 danger or safety or health violation in 

20 such mine; 

21 ‘‘(II) has instituted or caused to 

22 be instituted, or is about to institute 

23 or cause to be instituted, any pro24 ceeding under or related to this Act; 


SSpencer on DSK4SPTVN1PROD with BILLS
37 

•S 854 IS

1 ‘‘(III) has testified, or is about to 

2 testify, in any such proceeding or has 

3 testified, or is about to testify, before 

4 Congress or in any Federal or State 

5 proceeding related to safety or health 

6 in a coal or other mine; 

7 ‘‘(IV) has exercised on behalf of 

8 any individual, including such miner, 

9 employee, representative, or applicant, 

10 any such statutory right; 

11 ‘‘(V) has reported to such oper12 ator or agent any injury or illness; or 

13 ‘‘(VI) has refused to violate any 

14 provision of this Act, including any 

15 mandatory health or safety standard 

16 or regulation promulgated under this 

17 Act; 

18 ‘‘(ii) because such miner is the subject 

19 of medical evaluations and potential trans20 fer under a standard published pursuant to 

21 section 101; or 

22 ‘‘(iii) where the discharge, discrimina23 tion, or other interference was based on a 

24 suspicion or belief that such miner, em25 ployee, representative, or applicant enVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
38 

•S 854 IS

1 gaged in, or is about to engage in, any of 

2 the activities described in clause (i). 

3 ‘‘(B) RETALIATION FOR REFUSAL TO PER4 FORM DUTIES.— 

5 ‘‘(i) IN GENERAL.—No person shall 

6 discharge or in any manner discriminate 

7 against a miner or other employee of an 

8 operator, or applicant for employment at a 

9 mine of such operator, for refusing to per10 form the duties of a miner, other employee, 

11 or applicant if such miner, other employee, 

12 or applicant has a good-faith and reason13 able belief that performing such duties 

14 would pose a safety or health hazard to 

15 such miner, other employee, or applicant, 

16 or to any other miner or employee. 

17 ‘‘(ii) STANDARD.—For purposes of 

18 clause (i), the circumstances causing the 

19 miner’s, other employee’s, or applicant’s 

20 good-faith belief that performing such du21 ties would pose a safety or health hazard 

22 shall be of such a nature that a reasonable 

23 person, under the circumstances con24 fronting the miner, other employee, or ap25 plicant, would conclude that there is such 


SSpencer on DSK4SPTVN1PROD with BILLS
39 

•S 854 IS

1 a hazard. In order to qualify for protection 

2 under this paragraph, the miner, other em3 ployee, or applicant, when practicable, shall 

4 have communicated or attempted to com5 municate the safety or health concern to 

6 the operator and have not received from 

7 the operator a response reasonably cal8 culated to allay such concern. 

9 ‘‘(2) COMPLAINT.—Any miner or other em10 ployee of an operator, representative of miners, or 

11 applicant for employment at a mine of such operator 

12 who believes that he or she has been discharged, dis13 ciplined, or otherwise discriminated against by any 

14 person in violation of paragraph (1) may file a com15 plaint with the Secretary alleging such discrimina16 tion not later than 180 days after the later of— 

17 ‘‘(A) the last date on which an alleged vio18 lation of paragraph (1) occurs; or 

19 ‘‘(B) the date on which such miner, em20 ployee, representative, or applicant knows or 

21 should reasonably have known that such alleged 

22 violation occurred. 

23 ‘‘(3) INVESTIGATION AND HEARING.— 

24 ‘‘(A) COMMENCEMENT OF INVESTIGATION

25 AND INITIAL DETERMINATION.—Upon receipt 


SSpencer on DSK4SPTVN1PROD with BILLS
40 

•S 854 IS

1 of a complaint under paragraph (2), the Sec2 retary shall— 

3 ‘‘(i) forward a copy of the complaint 

4 to the respondent; 

5 ‘‘(ii) commence an investigation with6 in 15 days of the Secretary’s receipt of the 

7 complaint; and 

8 ‘‘(iii) as soon as practicable after com9 mencing the investigation under clause (ii), 

10 make the determination required under 

11 subparagraph (B). 

12 ‘‘(B) REINSTATEMENT.—If the Secretary 

13 finds that a complaint under paragraph (2) was 

14 not frivolously brought, the Commission, on an 

15 expedited basis upon application of the Sec16 retary, shall order the immediate reinstatement 

17 of the miner, employee, or representative de18 scribed in such paragraph until there has been 

19 a final Commission order disposing of the un20 derlying complaint. If either the Secretary or 

21 such miner, employee, or representative pursues 

22 the underlying complaint, such reinstatement 

23 shall remain in effect until the Commission has 

24 disposed of such complaint on the merits, re25 gardless of whether the Secretary pursues such 


SSpencer on DSK4SPTVN1PROD with BILLS
41 

•S 854 IS

1 complaint by filing a complaint under subpara2 graph (D) or the miner or other employee pur3 sues such complaint by filing an action under 

4 paragraph (4). If neither the Secretary nor 

5 such miner, employee, or representative pursues 

6 the underlying complaint within the periods 

7 specified in paragraph (4), such reinstatement 

8 shall remain in effect until such time as the 

9 Commission may, upon motion of the operator 

10 and after providing notice and an opportunity 

11 to be heard to the parties, vacate such com12 plaint for failure to prosecute. 

13 ‘‘(C) INVESTIGATION.—Such investigation 

14 shall include interviewing the complainant 

15 and— 

16 ‘‘(i) providing the respondent an op17 portunity to submit to the Secretary a 

18 written response to the complaint and to 

19 present statements from witnesses or pro20 vide evidence; and 

21 ‘‘(ii) providing the complainant an op22 portunity to receive any statements or evi23 dence provided to the Secretary and to 

24 provide additional information or evidence, 

25 or to rebut any statements or evidence. 


SSpencer on DSK4SPTVN1PROD with BILLS
42 

•S 854 IS

1 ‘‘(D) ACTION BY THE SECRETARY.—If, 

2 upon such investigation, the Secretary deter3 mines that the provisions of this subsection 

4 have been violated, the Secretary shall imme5 diately file a complaint with the Commission, 

6 with service upon the alleged violator and the 

7 miner, employee, representative, or applicant 

8 described in paragraph (2) alleging such dis9 crimination or interference and propose an 

10 order granting appropriate relief. 

11 ‘‘(E) ACTION OF THE COMMISSION.—The 

12 Commission shall afford an opportunity for a 

13 hearing on the record (in accordance with sec14 tion 554 of title 5, United States Code, but 

15 without regard to subsection (a)(3) of such sec16 tion) and thereafter shall issue an order, based 

17 upon findings of fact, affirming, modifying, or 

18 vacating the Secretary’s proposed order, or di19 recting other appropriate relief. Such order 

20 shall become final 30 days after its issuance. 

21 The complaining miner, employee, representa22 tive, or applicant described in paragraph (2) 

23 may present additional evidence on his or her 

24 own behalf during any hearing held pursuant to 

25 this paragraph. 


SSpencer on DSK4SPTVN1PROD with BILLS
43 

•S 854 IS

1 ‘‘(F) RELIEF.—The Commission shall have 

2 authority in such proceedings to require a per3 son committing a violation of this subsection to 

4 take such affirmative action to abate the viola5 tion and prescribe a remedy as the Commission 

6 considers appropriate, including— 

7 ‘‘(i) the rehiring or reinstatement of 

8 the miner, employee, or representative de9 scribed in paragraph (2) with back pay 

10 and interest and without loss of position or 

11 seniority, and restoration of the terms, 

12 rights, conditions, and privileges associated 

13 with the complainant’s employment; 

14 ‘‘(ii) any other compensatory and con15 sequential damages sufficient to make the 

16 complainant whole, and exemplary dam17 ages where appropriate; and 

18 ‘‘(iii) expungement of all warnings, 

19 reprimands, or derogatory references that 

20 have been placed in paper or electronic 

21 records or databases of any type relating 

22 to the actions by the complainant that 

23 gave rise to the unfavorable personnel ac24 tion, and, at the complainant’s direction, 

25 transmission of a copy of the decision on 


SSpencer on DSK4SPTVN1PROD with BILLS
44 

•S 854 IS

1 the complaint to any person whom the 

2 complainant reasonably believes may have 

3 received such unfavorable information. 

4 ‘‘(4) NOTICE TO AND ACTION OF COMPLAIN5 ANT.— 

6 ‘‘(A) NOTICE TO COMPLAINANT.—Not 

7 later than 90 days after the receipt of a com8 plaint filed under paragraph (2), the Secretary 

9 shall notify, in writing, the miner, employee, 

10 representative, or applicant described in para11 graph (2) of the determination of such Sec12 retary on whether a violation has occurred. 

13 ‘‘(B) ACTION OF COMPLAINANT.—If the 

14 Secretary, upon investigation, determines that 

15 the provisions of this subsection have not been 

16 violated, the complainant shall have the right, 

17 within 30 days after receiving notice of the Sec18 retary’s determination, to file an action in his 

19 or her own behalf before the Commission, 

20 charging discrimination or interference in viola21 tion of paragraph (1). 

22 ‘‘(C) HEARING AND DECISION.—The Com23 mission shall afford an opportunity for a hear24 ing on the record (in accordance with section 

25 554 of title 5, United States Code, but without 


SSpencer on DSK4SPTVN1PROD with BILLS
45 

•S 854 IS

1 regard to subsection (a)(3) of such section), 

2 and thereafter shall issue an order, based upon 

3 findings of fact, dismissing or sustaining the 

4 complainant’s charges and, if the charges are 

5 sustained, granting such relief as it deems ap6 propriate as described in paragraph (3)(F). 

7 Such order shall become final 30 days after its 

8 issuance. 

9 ‘‘(5) BURDEN OF PROOF.—In adjudicating a 

10 complaint pursuant to this subsection, the Commis11 sion may determine that a violation of paragraph (1) 

12 has occurred only if the complainant demonstrates 

13 that any conduct described in paragraph (1) with re14 spect to the complainant was a contributing factor 

15 in the adverse action alleged in the complaint. A de16 cision or order that is favorable to the complainant 

17 shall not be issued pursuant to this subsection if the 

18 respondent demonstrates by clear and convincing 

19 evidence that the respondent would have taken the 

20 same adverse action in the absence of such conduct. 

21 ‘‘(6) ATTORNEYS’ FEES.—Whenever an order is 

22 issued sustaining the complainant’s charges under 

23 this subsection, a sum equal to the aggregate 

24 amount of all costs and expenses, including attor25 ney’s fees, as determined by the Commission to have 


SSpencer on DSK4SPTVN1PROD with BILLS
46 

•S 854 IS

1 been reasonably incurred by the complainant for, or 

2 in connection with, the institution and prosecution of 

3 such proceedings shall be assessed against the per4 son committing such violation. The Commission 

5 shall determine whether such costs and expenses 

6 were reasonably incurred by the complainant without 

7 reference to whether the Secretary also participated 

8 in the proceeding. 

9 ‘‘(7) EXPEDITED PROCEEDINGS; JUDICIAL RE10 VIEW.—Proceedings under this subsection shall be 

11 expedited by the Secretary and the Commission. Any 

12 order issued by the Commission under this sub13 section shall be subject to judicial review in accord14 ance with section 106. Violations by any person of 

15 paragraph (1) shall be subject to the provisions of 

16 sections 108 and 110(a)(4). 

17 ‘‘(8) PROCEDURAL RIGHTS.—The rights and 

18 remedies provided for in this subsection may not be 

19 waived by any agreement, policy, form, or condition 

20 of employment, including by any pre-dispute arbitra21 tion agreement or collective bargaining agreement. 

22 ‘‘(9) SAVINGS.—Nothing in this subsection shall 

23 be construed to diminish the rights, privileges, or 

24 remedies of any individual who exercises rights 


SSpencer on DSK4SPTVN1PROD with BILLS
47 

•S 854 IS

1 under any Federal or State law or common law, or 

2 under any collective bargaining agreement.’’. 

3 SEC. 402. PROTECTION FROM LOSS OF PAY. 

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

5 follows: 

6 ‘‘SEC. 111. ENTITLEMENT OF MINERS. 

7 ‘‘(a) PROTECTION FROM LOSS OF PAY.— 

8 ‘‘(1) WITHDRAWAL ORDERS.— 

9 ‘‘(A) SHIFTS AT TIME OF ORDER.—If a 

10 coal or other mine, or an area of such mine, is 

11 closed by an order issued under section 103, 

12 104, 107, 108, or 110, all miners working dur13 ing the shift when such order was issued who 

14 are idled by such order shall be entitled, regard15 less of the result of any review of such order, 

16 to full compensation by the operator at their 

17 regular rates of pay for the period during which 

18 they are so idled, but for not more than the bal19 ance of such shift. 

20 ‘‘(B) SUBSEQUENT SHIFTS.—If such order 

21 is not terminated prior to the working shift suc22 ceeding the shift described in subparagraph 

23 (A), all miners assigned to such succeeding 

24 shift who are idled by such order shall be enti25 tled to compensation by the operator at their 


SSpencer on DSK4SPTVN1PROD with BILLS
48 

•S 854 IS

1 regular rates of pay for the period during which 

2 they are so idled, but not for more than one 

3 half of the hours of such shift, or 4 hours of 

4 such shift, whichever is greater. 

5 ‘‘(C) EXTENDED CLOSURES.—If a coal or 

6 other mine, or an area of such mine, is closed 

7 by an order issued under section 103, 104, 107, 

8 108, or 110, all miners who are idled by such 

9 order, for a shift succeeding the shift described 

10 in subparagraph (B), shall be entitled, regard11 less of the result of any review of such order, 

12 to full compensation by the operator at their 

13 regular rates of pay and in accordance with 

14 their regular schedules of pay for the period for 

15 which they are idled, but not for more than 60 

16 days. 

17 ‘‘(2) CLOSURE IN ADVANCE OF ORDER.— 

18 ‘‘(A) IN GENERAL.—If the Secretary deter19 mines that a coal or other mine, or an area of 

20 such mine, was closed by the operator in antici21 pation of the issuance of an order described in 

22 paragraph (1), all miners who are idled by such 

23 closure shall be entitled, subject to subpara24 graph (B), to full compensation by the operator 

25 at their regular rates of pay and in accordance 


SSpencer on DSK4SPTVN1PROD with BILLS
49 

•S 854 IS

1 with their regular schedules of pay, from the 

2 time of such closure until such time as the Sec3 retary authorizes reopening of such mine or 

4 such area, but not for more than 60 days. 

5 ‘‘(B) EXCEPTION.—The entitlement under 

6 subparagraph (A) shall not apply if an operator 

7 promptly withdraws miners upon discovery of a 

8 hazard and notifies the Secretary, where re9 quired and within the prescribed time period. 

10 ‘‘(3) REFUSAL TO COMPLY.—Whenever an op11 erator violates or fails or refuses to comply with any 

12 order issued under section 103, 104, 107, 108, or 

13 110, all miners employed at the affected mine who 

14 would have been withdrawn from, or prevented from 

15 entering, such mine or area thereof as a result of 

16 such order shall be entitled to full compensation by 

17 the operator at their regular rates of pay, in addi18 tion to pay received for work performed after such 

19 order was issued, for the period beginning when 

20 such order was issued and ending when such order 

21 is complied with, vacated, or terminated. 

22 ‘‘(b) ENFORCEMENT.— 

23 ‘‘(1) COMMISSION ORDERS.—The Commission 

24 shall have authority to order compensation due 

25 under this section upon the filing of a complaint by 


SSpencer on DSK4SPTVN1PROD with BILLS
50 

•S 854 IS

1 a miner or his representative and after opportunity 

2 for hearing on the record subject to section 554 of 

3 title 5, United States Code. Whenever the Commis4 sion issues an order sustaining the complaint under 

5 this subsection in whole or in part, the Commission 

6 shall award the complainant reasonable attorneys’ 

7 fees and costs. 

8 ‘‘(2) FAILURE TO PAY COMPENSATION DUE.— 

9 Consistent with the authority of the Secretary to 

10 order miners withdrawn from a mine under this Act, 

11 the Secretary shall order a mine that has been sub12 ject to a withdrawal order under section 103, 104, 

13 107, 108, or 110, and has reopened, to be closed 

14 again if compensation in accordance with the provi15 sions of this section is not paid by the end of the 

16 next regularly scheduled payroll period following the 

17 lifting of a withdrawal order. 

18 ‘‘(c) EXPEDITED REVIEW.—If an order is issued that 

19 results in a payment to a miner under subsection (a), the 

20 operator shall have the right to an expedited review before 

21 the Commission in the same manner as the procedure 

22 under section 316(b)(2)(G)(ii) (including the deadlines 

23 under such section).’’. 


SSpencer on DSK4SPTVN1PROD with BILLS
51 

•S 854 IS

1 SEC. 403. UNDERGROUND COAL MINER EMPLOYMENT 

2 STANDARD FOR MINES WITH PATTERNS OF 

3 VIOLATIONS. 

4 Title I (30 U.S.C. 811 et seq.) is further amended 

5 by adding at the end the following: 

6 ‘‘SEC. 117. UNDERGROUND COAL MINER EMPLOYMENT 

7 STANDARD FOR MINES WITH PATTERNS OF 

8 VIOLATIONS. 

9 ‘‘(a) IN GENERAL.—For the purpose of ensuring the 

10 health and safety of miners and the right of miners to 

11 raise health or safety concerns, an operator of an under12 ground coal mine who has received notice of a pattern of 

13 violations under section 104(e) in such mine, for 3 years 

14 after receipt of such notice, may not discharge or con15 structively discharge a miner employed at such mine with16 out reasonable grounds based on a failure of such miner 

17 to satisfactorily perform the duties required for work as 

18 a miner, including compliance with the provisions of this 

19 Act, regulations promulgated under this Act, mandatory 

20 health or safety standards under any other law, or any 

21 other legitimate business reason, if— 

22 ‘‘(1) the miner is paid on an hourly basis; and 

23 ‘‘(2) the miner has completed the employer’s 

24 probationary period, which in no case shall exceed 6 

25 months. 


SSpencer on DSK4SPTVN1PROD with BILLS
52 

•S 854 IS

1 ‘‘(b) CAUSE OF ACTION.—A miner aggrieved by a 

2 violation of subsection (a) may file a complaint in the 

3 United States district court in the district where the mine 

4 is located not later than 1 year after such violation. 

5 ‘‘(c) REMEDIES.—For a miner who prevails under 

6 subsection (b), the appropriate United States district 

7 court shall provide remedies to further the objectives of 

8 this Act, which may include reinstatement of such miner 

9 to the former position of such miner with back pay and 

10 compensatory damages. Such remedies shall include rea11 sonable attorneys’ fees and costs. 

12 ‘‘(d) PRE-DISPUTE WAIVER PROHIBITED.—The 

13 right of a miner to a cause of action under this section 

14 may not be waived with respect to any dispute that has 

15 not arisen as of the time of the waiver. 

16 ‘‘(e) CONSTRUCTION.—Nothing in this section shall 

17 be construed to limit the availability of rights and rem18 edies of miners under any other State or Federal law or 

19 a collective bargaining agreement.’’. 

20 TITLE V—MODERNIZING 

21 HEALTH AND SAFETY STAND22 ARDS 

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

24 Section 303(d) (30 U.S.C. 863(d)) is amended by 

25 adding at the end the following: 


SSpencer on DSK4SPTVN1PROD with BILLS
53 

•S 854 IS

1 ‘‘(3)(A) Not later than 30 days after the issuance of 

2 the interim final rules promulgated under subparagraph 

3 (B), each operator of an underground coal mine shall im4 plement a communication program at the underground 

5 coal mine to ensure that each miner (prior to traveling 

6 to or arriving at the work area of such miner and com7 mencing the assigned tasks of such miner) is orally briefed 

8 on and made aware of— 

9 ‘‘(i) any conditions that are hazardous, or that 

10 violate a mandatory health or safety standard or a 

11 plan approved under this Act, where the miner is ex12 pected to work or travel; and 

13 ‘‘(ii) the general conditions of that miner’s as14 signed working section or other area where the 

15 miner is expected to work or travel. 

16 ‘‘(B) Not later than 180 days after the date of enact17 ment of the Robert C. Byrd Mine Safety Protection Act 

18 of 2017, the Secretary shall promulgate interim final rules 

19 implementing the requirements of subparagraph (A). 

20 ‘‘(C) Not later than 2 years after the promulgation 

21 of the interim final rules under subparagraph (B), the 

22 Secretary shall issue a final rule implementing the require23 ments of subparagraph (A).’’. 


SSpencer on DSK4SPTVN1PROD with BILLS
54 

•S 854 IS

1 SEC. 502. ROCK DUST STANDARDS. 

2 (a) STANDARDS.—Section 304(d) (30 U.S.C. 864(d)) 

3 is amended— 

4 (1) by striking ‘‘Where rock’’ and inserting the 

5 following: ‘‘ROCK DUST.— 

6 ‘‘(1) IN GENERAL.—Where rock’’; 

7 (2) by striking ‘‘65 per centum’’ and all that 

8 follows through the period and inserting ‘‘80 per9 cent. Where methane is present in any ventilating 

10 current, the percentage of incombustible content of 

11 such combined dusts shall be increased 0.4 percent 

12 for each 0.1 percent of methane.’’; and 

13 (3) by adding at the end the following: 

14 ‘‘(2) METHODS OF MEASUREMENT.— 

15 ‘‘(A) IN GENERAL.—Each operator of an 

16 underground coal mine shall take accurate and 

17 representative samples that shall measure the 

18 total incombustible content of combined coal 

19 dust, rock dust, and other dust in such mine to 

20 ensure that the coal dust is kept below explosive 

21 levels through the appropriate application of 

22 rock dust. 

23 ‘‘(B) DIRECT READING MONITORS.—In 

24 order to ensure timely assessment and compli25 ance, the Secretary shall, not later than 180 

26 days after the date of enactment of the Robert 


SSpencer on DSK4SPTVN1PROD with BILLS
55 

•S 854 IS

1 C. Byrd Mine Safety Protection Act of 2017, 

2 require operators to measure total incombus3 tible content (or an equivalent measure of 

4 explosibility) in samples of combined coal dust, 

5 rock dust, and other dust, using direct reading 

6 monitors that the Secretary has approved for 

7 use in an underground coal mine, such as coal 

8 dust explosibility monitors. 

9 ‘‘(C) REGULATIONS.—The Secretary shall, 

10 not later than 180 days after the date of enact11 ment of the Robert C. Byrd Mine Safety Pro12 tection Act of 2017, promulgate an interim 

13 final rule that prescribes methods for operator 

14 sampling of total incombustible content (or an 

15 equivalent measure of explosibility) in samples 

16 of combined coal dust, rock dust, and other 

17 dust using direct reading monitors and that in18 cludes requirements for locations, methods, and 

19 intervals for mandatory operator sampling. 

20 ‘‘(D) RECOMMENDATIONS.—Not later than 

21 1 year after the date of enactment of the Rob22 ert C. Byrd Mine Safety Protection Act of 

23 2017, the Secretary of Health and Human 

24 Services shall, based upon the latest research, 

25 recommend to the Secretary of Labor any reviVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00055 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
56 

•S 854 IS

1 sions to the mandatory operator sampling loca2 tions, methods, and intervals included in the in3 terim final rule described in subparagraph (C) 

4 that may be warranted in light of such re5 search. 

6 ‘‘(3) LIMITATION.—Until the Secretary promul7 gates a final rule under paragraph (4)(B), any 

8 measurement taken by a direct reading monitor de9 scribed in paragraph (2)(B) shall not be admissible 

10 to establish a violation in an enforcement action 

11 under this Act. 

12 ‘‘(4) REPORT AND RULEMAKING AUTHORITY.— 

13 ‘‘(A) REPORT.—Not later than 2 years 

14 after the date of enactment of the Robert C. 

15 Byrd Mine Safety Protection Act of 2017, the 

16 Secretary of Health and Human Services, in 

17 consultation with the Secretary of Labor, shall 

18 prepare and submit, to the Committee on Edu19 cation and the Workforce of the House of Rep20 resentatives and the Committee on Health, 

21 Education, Labor, and Pensions of the Senate, 

22 a report— 

23 ‘‘(i) regarding whether any direct 

24 reading monitor described in paragraph 

25 (2)(B) is sufficiently reliable and accurate 


SSpencer on DSK4SPTVN1PROD with BILLS
57 

•S 854 IS

1 for the enforcement of the mandatory 

2 health or safety standards by the Secretary 

3 of Labor under this Act, and whether addi4 tional improvement to such direct reading 

5 monitor, or additional verification regard6 ing reliability and accuracy, would be need7 ed for enforcement purposes; and 

8 ‘‘(ii) identifying any limitations or im9 pediments for such use in underground 

10 coal mines. 

11 ‘‘(B) AUTHORITY.—If the Secretary deter12 mines, following a report under subparagraph 

13 (A) (or an update to such report), that any di14 rect reading monitor described in paragraph 

15 (2)(B) is sufficiently reliable and accurate for 

16 the enforcement of mandatory health or safety 

17 standards under this Act, the Secretary shall, 

18 after the submission of such report or update, 

19 promulgate a final rule authorizing the use of 

20 such direct reading monitor for purposes of 

21 compliance with, and enforcement of, such 

22 standards and authorizing the use of other 

23 methods for determining total incombustible 

24 content. Such final rule shall specify mandatory 


SSpencer on DSK4SPTVN1PROD with BILLS
58 

•S 854 IS

1 operator sampling locations, methods, and in2 tervals.’’. 

3 (b) ROCK DUST RECORDKEEPING.—Section 304 (30 

4 U.S.C. 864) is further amended— 

5 (1) by redesignating subsection (e) as sub6 section (f); 

7 (2) by inserting after subsection (d) the fol8 lowing: 

9 ‘‘(e) ROCK DUST RECORDKEEPING.—The operator of 

10 each coal mine shall maintain and continuously update a 

11 record of the amount of rock dust purchased for each such 

12 mine.’’; and 

13 (3) in subsection (f), as so redesignated, by 

14 striking ‘‘Subsections (b) through (d)’’ and inserting 

15 ‘‘Subsections (b) through (e)’’. 

16 SEC. 503. ATMOSPHERIC MONITORING SYSTEMS. 

17 Section 317 (30 U.S.C. 877) is amended by adding 

18 at the end the following: 

19 ‘‘(u) ATMOSPHERIC MONITORING SYSTEMS.— 

20 ‘‘(1) GENERAL REGULATIONS.—Not later than 

21 1 year after the date of enactment of the Robert C. 

22 Byrd Mine Safety Protection Act of 2017, the Sec23 retary shall, following consultation with the Director 

24 of the National Institute for Occupational Safety 

25 and Health, promulgate regulations requiring that 


SSpencer on DSK4SPTVN1PROD with BILLS
59 

•S 854 IS

1 each operator of an underground coal mine install 

2 atmospheric monitoring systems that— 

3 ‘‘(A) protect miners where the miners nor4 mally work and travel; 

5 ‘‘(B) assist in mine emergency response 

6 and the conduct of accident investigations; 

7 ‘‘(C) provide real-time information regard8 ing methane, oxygen, and carbon monoxide lev9 els, and airflow direction, as appropriate, with 

10 sensing, annunciating, and recording capabili11 ties; and 

12 ‘‘(D) can, to the maximum extent prac13 ticable, withstand explosions and fires. 

14 ‘‘(2) ADDITIONAL REGULATIONS.—The regula15 tions promulgated under paragraph (1) shall, if de16 termined appropriate after an evaluation by the Sec17 retary, include— 

18 ‘‘(A) the installation of atmospheric moni19 toring and recording devices for mining equip20 ment; 

21 ‘‘(B) the implementation of redundant sys22 tems, such as the bundle tubing system, that 

23 can continuously monitor the mine atmosphere 

24 following incidents such as fires, explosions, en25 trapments, and inundations; and 


SSpencer on DSK4SPTVN1PROD with BILLS
60 

•S 854 IS

1 ‘‘(C) the implementation of other tech2 nologies available to conduct continuous atmos3 pheric monitoring.’’. 

4 SEC. 504. STUDY ON RESPIRABLE DUST STANDARDS. 

5 (a) STUDY.—Beginning one month after the date of 

6 enactment of this Act, the Secretary of Labor shall under7 take a retrospective study on the effectiveness of the final 

8 rule of the Department of Labor entitled ‘‘Lowering Min9 ers’ Exposure to Respirable Coal Mine Dust, Including 

10 Continuous Personal Dust Monitors’’, published at 79 

11 Fed. Reg. 24814 (May 1, 2014), and evaluate the data 

12 regarding the use of continuous personal dust monitors, 

13 to determine whether— 

(1) the 1.5 mg/m3 14 respirable dust standard that 

15 was included in such final rule should be further 

16 lowered to better protect the health of miners; 

17 (2) the frequency of sampling continuous per18 sonal dust monitors should be increased; 

19 (3) engineering controls and work practices 

20 used by mine operators to achieve and maintain the 

21 required respirable coal mine dust levels should be 

22 modified; and 

23 (4) samples taken on shifts longer than 8 hours 

24 should be converted to an 8-hour equivalent con25 centration to protect miners who work longer shifts. 


SSpencer on DSK4SPTVN1PROD with BILLS
61 

•S 854 IS

1 (b) REPORT.— 

2 (1) INITIAL REPORT.—Upon beginning the 

3 study under subsection (a), the Secretary of Labor 

4 shall transmit a copy of such study to Congress, no5 tifying Congress that such study has commenced. 

6 (2) ANNUAL REPORTS.—For each year after 

7 the commencement of the study under subsection (a) 

8 and until such study is completed, the Secretary of 

9 Labor shall transmit a report to Congress on the 

10 progress of such study. 

11 (3) FINAL REPORT.—Upon completion of the 

12 study under subsection (a), the Secretary of Labor 

13 shall submit a final report of such study to Con14 gress. 

15 SEC. 505. REFRESHER TRAINING ON MINERS’ RIGHTS AND 

16 RESPONSIBILITIES. 

17 (a) IN GENERAL.—Section 115(a)(3) (30 U.S.C. 

18 825(a)(3)) is amended to read as follows: 

19 ‘‘(3) all miners shall receive no less than 9 

20 hours of refresher training, no less frequently than 

21 once every 12 months. Such training shall include 

22 one hour of training on the statutory rights and re23 sponsibilities of miners and their representatives 

24 under this Act, and other applicable Federal and 

25 State law, and shall be through a program of inVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00061 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
62 

•S 854 IS

1 struction developed by the Secretary and delivered 

2 by an employee of the Administration (or a trainer 

3 approved by the Administration) that is a party 

4 independent from the operator;’’. 

5 (b) NATIONAL HAZARD REPORTING HOTLINE.—Sec6 tion 115 (30 U.S.C. 825), as so amended, is further 

7 amended— 

8 (1) by redesignating subsections (c) through (e) 

9 as subsections (d) through (f), respectively; and 

10 (2) by inserting after subsection (b) the fol11 lowing: 

12 ‘‘(c) Any health and safety training program of in13 struction provided under this section shall include dis14 tribution to miners of information regarding the rights of 

15 such miners under this Act and a toll-free hotline tele16 phone number, which the Secretary shall maintain to re17 ceive complaints from miners and the public regarding 

18 hazardous conditions, discrimination, safety or health vio19 lations, or other mine safety or health concerns. Informa20 tion regarding such hotline shall be provided in a portable, 

21 convenient format, such as a durable wallet card, to enable 

22 miners to keep such information on their person.’’. 

23 (c) TIMING OF INITIAL STATUTORY RIGHTS TRAIN24 ING.—Notwithstanding section 115 of the Federal Mine 

25 Safety and Health Act of 1977 (30 U.S.C. 825) (as so 


SSpencer on DSK4SPTVN1PROD with BILLS
63 

•S 854 IS

1 amended) or the health and safety training program ap2 proved under such section, an operator shall ensure that 

3 all miners already employed by the operator on the date 

4 of enactment of this Act shall receive the one hour of stat5 utory rights and responsibilities training described in sec6 tion 115(a)(3) of such Act, not later than 180 days after 

7 such date. 

8 SEC. 506. AUTHORITY TO MANDATE ADDITIONAL TRAINING. 

9 (a) IN GENERAL.—Section 115 (30 U.S.C. 825), as 

10 so amended, is further amended— 

11 (1) by redesignating subsections (e) and (f) (as 

12 so redesignated) as subsections (f) and (g), respec13 tively; and 

14 (2) by inserting after subsection (d) (as so re15 designated) the following: 

16 ‘‘(e) AUTHORITY TO MANDATE ADDITIONAL TRAIN17 ING.— 

18 ‘‘(1) IN GENERAL.—The Secretary is authorized 

19 to issue an order requiring that an operator of a 

20 coal or other mine provide additional training be21 yond what is otherwise required by law, and speci22 fying the time within which such training shall be 

23 provided, if the Secretary finds that— 

24 ‘‘(A)(i) a serious or fatal accident has oc25 curred at such mine; 


SSpencer on DSK4SPTVN1PROD with BILLS
64 

•S 854 IS

1 ‘‘(ii) such mine has experienced accident 

2 and injury rates, citations for violations of this 

3 Act (including mandatory health or safety 

4 standards or regulations promulgated under 

5 this Act), citations for significant and substan6 tial violations, or withdrawal orders issued 

7 under this Act, at a rate above the average for 

8 mines of similar size and type; or 

9 ‘‘(iii) an operator has a history of failing to 

10 adequately train miners, as required by this Act 

11 or the regulations promulgated under this Act; 

12 and 

13 ‘‘(B) additional training would benefit the 

14 health or safety of miners at the mine. 

15 ‘‘(2) WITHDRAWAL ORDER.—If the operator 

16 fails to provide training ordered under paragraph 

17 (1) within the specified time provided by the Sec18 retary under such paragraph, the Secretary shall 

19 issue an order requiring such operator to cause all 

20 affected persons, except persons referred to in sec21 tion 104(c), to be withdrawn, and to be prohibited 

22 from entering such mine, until such operator has 

23 provided such training.’’. 

24 (b) CONFORMING AMENDMENTS.—Section 104(g)(2) 

25 (30 U.S.C. 814(g)(2)) is amended by striking ‘‘under 


SSpencer on DSK4SPTVN1PROD with BILLS
65 

•S 854 IS

1 paragraph (1)’’ both places it appears and inserting 

2 ‘‘under paragraph (1) or under section 115(e)’’. 

3 SEC. 507. BROOKWOOD-SAGO MINE SAFETY GRANTS. 

4 Section 14(e)(2) of the Mine Improvement and New 

5 Emergency Response Act of 2006 (30 U.S.C. 965(e)(2)) 

6 is amended by inserting before the period ‘‘, and under7 ground mine rescue training activities that simulate mine 

8 accident conditions’’. 

9 SEC. 508. CERTIFICATION OF PERSONNEL. 

10 (a) IN GENERAL.—Title I (30 U.S.C. 811 et seq.), 

11 as so amended, is further amended by adding at the end 

12 the following: 

13 ‘‘SEC. 118. CERTIFICATION OF PERSONNEL. 

14 ‘‘(a) CERTIFICATION REQUIRED.—Any person who is 

15 authorized or designated by the operator of a coal or other 

16 mine to perform any duties or provide any training that 

17 this Act, including a mandatory health or safety standard 

18 or regulation promulgated pursuant to this Act, requires 

19 to be performed or provided by a certified, registered, 

20 qualified, or otherwise approved person, shall be permitted 

21 to perform such duties or provide such training only if 

22 such person has a current certification, registration, quali23 fication, or other approval to perform such duties or pro24 vide such training consistent with the requirements of this 

25 section. 


SSpencer on DSK4SPTVN1PROD with BILLS
66 

•S 854 IS

1 ‘‘(b) ESTABLISHMENT OF CERTIFICATION REQUIRE2 MENTS AND PROCEDURES.— 

3 ‘‘(1) IN GENERAL.—Not later than 1 year after 

4 the date of enactment of the Robert C. Byrd Mine 

5 Safety Protection Act of 2017, the Secretary shall 

6 issue mandatory standards to establish— 

7 ‘‘(A) requirements for the certification, 

8 registration, qualification, or other approval de9 scribed in subsection (a), including the experi10 ence, examinations, and references that may be 

11 required as appropriate; 

12 ‘‘(B) time limits for such certification, reg13 istration, qualification, or other approval, and 

14 procedures for obtaining and renewing such cer15 tification, registration, qualification, or other 

16 approval; and 

17 ‘‘(C) procedures and criteria for revoking 

18 such certification, registration, qualification, or 

19 other approval, including procedures that en20 sure that— 

21 ‘‘(i) the Secretary (or a State agency, 

22 as applicable) responds to requests for rev23 ocation; and 

24 ‘‘(ii) the names of individuals, whose 

25 certification, registration, qualification, or 


SSpencer on DSK4SPTVN1PROD with BILLS
67 

•S 854 IS

1 other approval has been revoked, are pro2 vided to and maintained by the Secretary, 

3 and are made available to appropriate 

4 State agencies through an electronic data5 base. 

6 ‘‘(2) COORDINATION WITH STATES.—In devel7 oping the standards required under paragraph (1), 

8 the Secretary shall consult with States that have 

9 miner certification programs to ensure effective co10 ordination with existing State standards and re11 quirements for certification. The standards required 

12 under paragraph (1) shall provide that the certifi13 cation, registration, qualification, or other approval 

14 of the State in which the coal or other mine is lo15 cated satisfies the requirement of subsection (a) if 

16 the State’s program of certification, registration, 

17 qualification, or other approval is no less stringent 

18 than the standards established by the Secretary 

19 under paragraph (1). 

20 ‘‘(c) OPERATOR FEES FOR CERTIFICATION.— 

21 ‘‘(1) ASSESSMENT AND COLLECTION.—Begin22 ning 180 days after the date of enactment of the 

23 Robert C. Byrd Mine Safety Protection Act of 2017, 

24 the Secretary shall assess and collect fees, in accord25 ance with this subsection, from each operator for 


SSpencer on DSK4SPTVN1PROD with BILLS
68 

•S 854 IS

1 each person certified under this section. Fees shall 

2 be assessed and collected in amounts determined by 

3 the Secretary as necessary to fund certification pro4 grams that meet the standards established under 

5 this section. 

6 ‘‘(2) USE.—Amounts collected under paragraph 

7 (1) shall only be available to the Secretary, in ac8 cordance with paragraph (3), for making expendi9 tures to carry out the certification programs estab10 lished under this section. 

11 ‘‘(3) AUTHORIZATION OF APPROPRIATIONS.—In 

12 addition to funds authorized to be appropriated 

13 under section 114, there is authorized to be appro14 priated to the Secretary for each fiscal year in which 

15 fees are collected under paragraph (1) an amount 

16 equal to the total amount of fees collected under 

17 paragraph (1) during that fiscal year. Such amounts 

18 are authorized to remain available until expended. If 

19 on the first day of a fiscal year a regular appropria20 tion to the Administration has not been enacted, the 

21 Administration shall continue to collect fees (as off22 setting collections) under this subsection at the rate 

23 in effect during the preceding fiscal year, until 5 

24 days after the date on which such regular appropria25 tion is enacted. 


SSpencer on DSK4SPTVN1PROD with BILLS
69 

•S 854 IS

1 ‘‘(4) COLLECTING AND CREDITING OF FEES.— 

2 Fees authorized and collected under this subsection 

3 shall be deposited and credited as offsetting collec4 tions to the account providing appropriations to the 

5 Administration and shall not be collected for any fis6 cal year except to the extent and in the amount pro7 vided in advance in appropriation Acts. 

8 ‘‘(d) CITATION; WITHDRAWAL ORDER.—Any oper9 ator who permits a person to perform any of the duties 

10 or provide any training described in subsection (a) without 

11 a current certification, registration, qualification, or other 

12 approval that meets the requirements of this section shall 

13 be considered to have committed an unwarrantable failure 

14 under section 104(d)(1), and the Secretary shall issue an 

15 order requiring that such person be withdrawn or reas16 signed to duties that do not require such certification, reg17 istration, qualification, or other approval.’’. 

18 (b) CONFORMING AMENDMENTS.—Section 318 (30 

19 U.S.C. 878) is amended— 

20 (1) by striking subsections (a) and (b); 

21 (2) in subsection (c), by redesignating para22 graphs (1) through (3) as subparagraphs (A) 

23 through (C), respectively; 


SSpencer on DSK4SPTVN1PROD with BILLS
70 

•S 854 IS

1 (3) in subsection (g), by redesignating para2 graphs (1) through (4) as subparagraphs (A) 

3 through (D), respectively; and 

4 (4) by redesignating subsections (c) through (l) 

5 as paragraphs (1) through (10), respectively. 

6 SEC. 509. ELECTRONIC RECORDS REQUIREMENT. 

7 Section 103 (30 U.S.C. 802) is amended by adding 

8 at the end the following: 

9 ‘‘(l) ELECTRONIC RECORDS.—Not later than 180 

10 days after the date of enactment of the Robert C. Byrd 

11 Mine Safety Protection Act of 2017, the Secretary shall 

12 promulgate regulations requiring that mine operators re13 tain records and data required by this Act, or otherwise 

14 required by the Secretary, that are created, stored, or 

15 transmitted in electronic form. Such records shall include 

16 records pertaining to miner safety and health, tracking 

17 and communications, atmospheric monitoring of methane, 

18 carbon monoxide, oxygen, coal dust and other mine condi19 tions, equipment usage history and operating parameters, 

20 equipment calibration and maintenance, and other infor21 mation relevant to compliance with Federal mine health 

22 or safety laws and regulations. Not later than 2 years 

23 after the date of enactment of such Act, the Secretary 

24 shall promulgate a regulation regarding the minimum necVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00070 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
71 

•S 854 IS

1 essary capabilities of equipment to retain, store, and re2 cover data created or transmitted in electronic form.’’. 

3 TITLE VI—ADDITIONAL MINE 

4 SAFETY PROVISIONS 

5 SEC. 601. DEFINITIONS. 

6 (a) DEFINITION OF OPERATOR.—Section 3(d) (30 

7 U.S.C. 802(d)) is amended to read as follows: 

8 ‘‘(d) ‘operator’ means— 

9 ‘‘(1) any owner, lessee, or other person 

10 that— 

11 ‘‘(A) operates or supervises a coal or 

12 other mine; or 

13 ‘‘(B) controls such mine by making or 

14 having the authority to make management 

15 or operational decisions that affect, directly 

16 or indirectly, the health or safety at such 

17 mine; or 

18 ‘‘(2) any independent contractor per19 forming services or construction at such mine;’’. 

20 (b) DEFINITION OF AGENT.—Section 3(e) (30 U.S.C. 

21 802(e)) is amended by striking ‘‘the miners’’ and inserting 

22 ‘‘any miner’’. 

23 (c) DEFINITION OF IMMINENT DANGER.—Section 

24 3(j) (30 U.S.C. 802(j)) is amended— 


SSpencer on DSK4SPTVN1PROD with BILLS
72 

•S 854 IS

1 (1) by striking ‘‘means the’’ and inserting 

2 ‘‘means— 

3 ‘‘(1) the’’; 

4 (2) by striking the semicolon at the end and in5 serting ‘‘; or’’; and 

6 (3) by adding at the end the following: 

7 ‘‘(2) the existence of multiple conditions or 

8 practices (regardless of whether related to each 

9 other) that, when considered in the aggregate, could 

10 reasonably be expected to cause death or serious 

11 physical harm before such conditions or practices 

12 can be abated;’’. 

13 (d) DEFINITION OF MINER.—Section 3(g) (30 U.S.C. 

14 802(g)) is amended by inserting after ‘‘or other mine’’ the 

15 following: ‘‘, and includes any individual who is not cur16 rently working in a coal or other mine but would be cur17 rently working in such mine, but for an accident in such 

18 mine’’. 

19 (e) DEFINITION OF SIGNIFICANT AND SUBSTANTIAL

20 VIOLATIONS.—Section 3 (30 U.S.C. 802), as so amended, 

21 is further amended— 

22 (1) in subsection (m), by striking ‘‘and’’ after 

23 the semicolon; 

24 (2) in subsection (n), by striking the period at 

25 the end and inserting a semicolon; 


SSpencer on DSK4SPTVN1PROD with BILLS
73 

•S 854 IS

1 (3) in subsection (o), by striking the period at 

2 the end and inserting ‘‘; and’’; and 

3 (4) by adding at the end the following: 

4 ‘‘(p) ‘significant and substantial violation’ 

5 means a violation of this Act, including any manda6 tory health or safety standard or regulation promul7 gated under this Act, that is of such nature as could 

8 significantly and substantially contribute to the 

9 cause and effect of a coal or other mine safety or 

10 health hazard as described in section 104(d).’’. 

11 SEC. 602. ASSISTANCE TO STATES. 

12 Section 503 (30 U.S.C. 953(a)) is amended— 

13 (1) in subsection (a)— 

14 (A) in the matter preceding paragraph (1), 

15 by striking ‘‘, in coordination with the Sec16 retary of Health, Education, and Welfare and 

17 the Secretary of the Interior,’’; 

18 (B) in paragraph (2), by striking ‘‘and’’ 

19 after the semicolon; 

20 (C) in paragraph (3), by striking the pe21 riod and inserting ‘‘; and’’; and 

22 (D) by adding at the end the following: 

23 ‘‘(4) to assist such State in developing and im24 plementing any certification program for coal or 


SSpencer on DSK4SPTVN1PROD with BILLS
74 

•S 854 IS

1 other mines required for compliance with section 

2 118.’’; and 

3 (2) in subsection (h), by striking ‘‘$3,000,000 

4 for fiscal year 1970, and $10,000,000 annually in 

5 each succeeding fiscal year’’ and inserting 

6 ‘‘$20,000,000 for each fiscal year’’. 

7 SEC. 603. DOUBLE ENCUMBRANCE; SUCCESSION PLAN. 

8 (a) AUTHORIZATION.—Notwithstanding any per9 sonnel procedures, rules, or guidance, the Secretary of 

10 Labor is authorized to double encumber a position or uti11 lize early replacement hiring for authorized representa12 tives and technical specialist positions in the Mine Safety 

13 and Health Administration. The number of such positions 

14 shall be consistent with the staffing requirements set forth 

15 in the succession plan under subsection (b). 

16 (b) SUCCESSION PLAN.— 

17 (1) IN GENERAL.—Not later than 90 days after 

18 the date of enactment of this Act, the Secretary of 

19 Labor shall develop and provide to Congress a suc20 cession plan for the Mine Safety and Health Admin21 istration for the next 5 years to assure timely re22 placement of qualified employees critical to main23 taining the agency’s mission. 

24 (2) CONTENTS OF PLAN.—The succession plan 

25 developed under this subsection shall— 


SSpencer on DSK4SPTVN1PROD with BILLS
75 

•S 854 IS

1 (A) estimate employee turnover for each 

2 year; 

3 (B) set benchmarks for maximum allow4 able percentage of vacancies, and a maximum 

5 ratio of trainees to authorized representatives; 

6 (C) utilize double encumbrance or early re7 placement hiring for authorized representatives 

8 and technical specialists; 

9 (D) implement tracking systems to assure 

10 that staffing levels of authorized representatives 

11 and technical specialists do not fall below the 

12 minimum required to conduct necessary inspec13 tions, thoroughly review mine plans, and con14 duct accident and special investigations; and 

15 (E) identify resources necessary to imple16 ment such plan. 

17 (3) UPDATES TO PLAN.—The succession plan 

18 under this subsection shall be updated biennially. 

19 TITLE VII—AMENDMENTS TO 

20 THE OCCUPATIONAL SAFETY 

21 AND HEALTH ACT OF 1970 

22 SEC. 701. COVERAGE OF PUBLIC EMPLOYEES. 

23 (a) IN GENERAL.—Section 3(5) of the Occupational 

24 Safety and Health Act of 1970 (29 U.S.C. 652(5)) is 

25 amended by striking ‘‘but does not include’’ and all that 


SSpencer on DSK4SPTVN1PROD with BILLS
76 

•S 854 IS

1 follows through the period at the end and inserting ‘‘in2 cluding the United States, a State, or a political subdivi3 sion of a State.’’. 

4 (b) CONSTRUCTION.—Nothing in this Act, or the 

5 amendments made by this Act, shall be construed to affect 

6 the application of section 18 of the Occupational Safety 

7 and Health Act of 1970 (29 U.S.C. 667). 

8 SEC. 702. ENHANCED PROTECTIONS FROM RETALIATION. 

9 (a) EMPLOYEE ACTIONS.—Section 11(c)(1) of the 

10 Occupational Safety and Health Act of 1970 (29 U.S.C. 

11 660(c)(1)) is amended— 

12 (1) by striking ‘‘discharge’’ and all that follows 

13 through ‘‘because such’’ and inserting the following: 

14 ‘‘discharge or cause to be discharged, or in any man15 ner discriminate against or cause to be discriminated 

16 against, any employee because— 

17 ‘‘(A) such’’; 

18 (2) by striking ‘‘this Act or has’’ and inserting 

19 the following: ‘‘this Act; 

20 ‘‘(B) such employee has’’; 

21 (3) by striking ‘‘in any such proceeding or be22 cause of the exercise’’ and inserting the following: 

23 ‘‘before Congress or in any Federal or State pro24 ceeding related to safety or health; 


SSpencer on DSK4SPTVN1PROD with BILLS
77 

•S 854 IS

1 ‘‘(C) such employee has refused to violate any 

2 provision of this Act; or 

3 ‘‘(D) of the exercise’’; and 

4 (4) by inserting before the period at the end the 

5 following: ‘‘, including the reporting of any injury, 

6 illness, or unsafe condition to the employer, agent of 

7 the employer, safety and health committee involved, 

8 or employee safety and health representative in9 volved’’. 

10 (b) PROHIBITION OF RETALIATION.—Section 11(c) 

11 of such Act (29 U.S.C. 660(c)) is amended by striking 

12 paragraph (2) and inserting the following: 

13 ‘‘(2)(A) No person shall discharge, or cause to be dis14 charged, or in any manner discriminate against, or cause 

15 to be discriminated against, an employee for refusing to 

16 perform the employee’s duties if the employee has a rea17 sonable apprehension that performing such duties would 

18 result in serious injury to, or serious impairment of the 

19 health of, the employee or other employees. 

20 ‘‘(B) For purposes of subparagraph (A), the cir21 cumstances causing the employee’s good-faith belief that 

22 performing such duties would pose a safety or health haz23 ard shall be of such a nature that a reasonable person, 

24 under the circumstances confronting the employee, would 

25 conclude that there is such a hazard. In order to qualify 


SSpencer on DSK4SPTVN1PROD with BILLS
78 

•S 854 IS

1 for protection under this paragraph, the employee, when 

2 practicable, shall have communicated or attempted to com3 municate the safety or health concern to the employer and 

4 have not received from the employer a response reasonably 

5 calculated to allay such concern.’’. 

6 (c) PROCEDURE.—Section 11(c) of such Act (29 

7 U.S.C. 660(c)) is amended by striking paragraph (3) and 

8 inserting the following: 

9 ‘‘(3) COMPLAINT.—Any employee who believes 

10 that the employee has been discharged, disciplined, 

11 or otherwise discriminated against by any person in 

12 violation of paragraph (1) or (2) may seek relief for 

13 such violation by filing a complaint with the Sec14 retary under paragraph (5). 

15 ‘‘(4) STATUTE OF LIMITATIONS.— 

16 ‘‘(A) IN GENERAL.—An employee may take 

17 the action permitted by paragraph (3) not later 

18 than 180 days after the later of— 

19 ‘‘(i) the date on which an alleged vio20 lation of paragraph (1) or (2) occurs; or 

21 ‘‘(ii) the date on which the employee 

22 knows or should reasonably have known 

23 that such alleged violation occurred. 

24 ‘‘(B) REPEAT VIOLATION.—With respect 

25 to an alleged repeat violation, except in a case 


SSpencer on DSK4SPTVN1PROD with BILLS
79 

•S 854 IS

1 when the employee has been discharged, a viola2 tion of paragraph (1) or (2) shall be considered 

3 to have occurred on the last date the alleged re4 peat violation occurred. 

5 ‘‘(5) INVESTIGATION.— 

6 ‘‘(A) IN GENERAL.—An employee may, 

7 within the time period required under para8 graph (4), file a complaint with the Secretary 

9 alleging a violation of paragraph (1) or (2). If 

10 the complaint alleges a prima facie case, the 

11 Secretary shall conduct an investigation of the 

12 allegations in the complaint, which— 

13 ‘‘(i) shall include— 

14 ‘‘(I) interviewing the complain15 ant; 

16 ‘‘(II) providing the respondent an 

17 opportunity to— 

18 ‘‘(aa) submit to the Sec19 retary a written response to the 

20 complaint; and 

21 ‘‘(bb) meet with the Sec22 retary to present statements from 

23 witnesses or provide evidence; 

24 and 


SSpencer on DSK4SPTVN1PROD with BILLS
80 

•S 854 IS

1 ‘‘(III) providing the complainant 

2 an opportunity to— 

3 ‘‘(aa) receive any statements 

4 or evidence provided to the Sec5 retary; 

6 ‘‘(bb) meet with the Sec7 retary; and 

8 ‘‘(cc) rebut any statements 

9 or evidence; and 

10 ‘‘(ii) may include issuing subpoenas 

11 for the purposes of such investigation. 

12 ‘‘(B) DECISION.—Not later than 90 days 

13 after the filing of the complaint, the Secretary 

14 shall— 

15 ‘‘(i) determine whether reasonable 

16 cause exists to believe that a violation of 

17 paragraph (1) or (2) has occurred; and 

18 ‘‘(ii) issue a decision granting or de19 nying relief. 

20 ‘‘(6) PRELIMINARY ORDER FOLLOWING INVES21 TIGATION.—If, after completion of an investigation 

22 under paragraph (5)(A), the Secretary finds reason23 able cause to believe that a violation of paragraph 

24 (1) or (2) has occurred, the Secretary shall issue a 

25 preliminary order providing relief authorized under 


SSpencer on DSK4SPTVN1PROD with BILLS
81 

•S 854 IS

1 paragraph (14) at the same time the Secretary 

2 issues a decision under paragraph (5)(B). If a de 

3 novo hearing is not requested within the time period 

4 required under paragraph (7)(A)(i), such prelimi5 nary order shall be deemed a final order of the Sec6 retary and is not subject to judicial review. 

7 ‘‘(7) HEARING.— 

8 ‘‘(A) REQUEST FOR HEARING.— 

9 ‘‘(i) IN GENERAL.—A de novo hearing 

10 on the record before an administrative law 

11 judge may be requested— 

12 ‘‘(I) by the complainant or re13 spondent within 30 days after receiv14 ing notification of a decision granting 

15 or denying relief issued under para16 graph (5)(B) or a preliminary order 

17 under paragraph (6) respectively; 

18 ‘‘(II) by the complainant within 

19 30 days after the date the complaint 

20 is dismissed without investigation by 

21 the Secretary under paragraph (5)(A); 

22 or 

23 ‘‘(III) by the complainant within 

24 120 days after the date of filing the 

25 complaint, if the Secretary has not 


SSpencer on DSK4SPTVN1PROD with BILLS
82 

•S 854 IS

1 issued a decision under paragraph 

2 (5)(B). 

3 ‘‘(ii) REINSTATEMENT ORDER.—The 

4 request for a hearing shall not operate to 

5 stay any preliminary reinstatement order 

6 issued under paragraph (6). 

7 ‘‘(B) PROCEDURES.— 

8 ‘‘(i) IN GENERAL.—A hearing re9 quested under this paragraph shall be con10 ducted expeditiously and in accordance 

11 with rules established by the Secretary for 

12 hearings conducted by administrative law 

13 judges. 

14 ‘‘(ii) SUBPOENAS; PRODUCTION OF

15 EVIDENCE.—In conducting any such hear16 ing, the administrative law judge may issue 

17 subpoenas. The respondent or complainant 

18 may request the issuance of subpoenas 

19 that require the deposition of, or the at20 tendance and testimony of, witnesses and 

21 the production of any evidence (including 

22 any books, papers, documents, or record23 ings) relating to the matter under consid24 eration. 


SSpencer on DSK4SPTVN1PROD with BILLS
83 

•S 854 IS

1 ‘‘(iii) DECISION.—The administrative 

2 law judge shall issue a decision not later 

3 than 90 days after the date on which a 

4 hearing was requested under this para5 graph and promptly notify, in writing, the 

6 parties and the Secretary of such decision, 

7 including the findings of fact and conclu8 sions of law. If the administrative law 

9 judge finds that a violation of paragraph 

10 (1) or (2) has occurred, the judge shall 

11 issue an order for relief under paragraph 

12 (14). If review under paragraph (8) is not 

13 timely requested, such order shall be 

14 deemed a final order of the Secretary that 

15 is not subject to judicial review. 

16 ‘‘(8) ADMINISTRATIVE APPEAL.— 

17 ‘‘(A) IN GENERAL.—Not later than 30 

18 days after the date of notification of a decision 

19 and order issued by an administrative law judge 

20 under paragraph (7), the complainant or re21 spondent may file, with objections, an adminis22 trative appeal with an administrative review 

23 body designated by the Secretary (referred to in 

24 this paragraph as the ‘review board’). 


SSpencer on DSK4SPTVN1PROD with BILLS
84 

•S 854 IS

1 ‘‘(B) STANDARD OF REVIEW.—In review2 ing the decision and order of the administrative 

3 law judge, the review board shall affirm the de4 cision and order if it is determined that the fac5 tual findings set forth therein are supported by 

6 substantial evidence and the decision and order 

7 are made in accordance with applicable law. 

8 ‘‘(C) DECISIONS.—If the review board 

9 grants an administrative appeal, the review 

10 board shall issue a final decision and order af11 firming or reversing, in whole or in part, the 

12 decision under review by not later than 90 days 

13 after receipt of the administrative appeal. If it 

14 is determined that a violation of paragraph (1) 

15 or (2) has occurred, the review board shall issue 

16 a final decision and order providing relief au17 thorized under paragraph (14). Such decision 

18 and order shall constitute final agency action 

19 with respect to the matter appealed. 

20 ‘‘(9) SETTLEMENT IN THE ADMINISTRATIVE

21 PROCESS.— 

22 ‘‘(A) IN GENERAL.—At any time before 

23 issuance of a final order, an investigation or 

24 proceeding under this subsection may be termiVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00084 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
85 

•S 854 IS

1 nated on the basis of a settlement agreement 

2 entered into by the parties. 

3 ‘‘(B) PUBLIC POLICY CONSIDERATIONS.— 

4 Neither the Secretary, an administrative law 

5 judge, or review board conducting a hearing 

6 under this subsection shall accept a settlement 

7 that contains conditions conflicting with the 

8 rights protected under this Act or that are con9 trary to public policy, including a restriction on 

10 a complainant’s right to future employment 

11 with employers other than the specific employ12 ers named in a complaint. 

13 ‘‘(10) INACTION BY THE REVIEW BOARD OR AD14 MINISTRATIVE LAW JUDGE.— 

15 ‘‘(A) IN GENERAL.—The complainant may 

16 bring a de novo action described in subpara17 graph (B) if— 

18 ‘‘(i) an administrative law judge has 

19 not issued a decision and order within the 

20 90-day time period required under para21 graph (7)(B)(iii); or 

22 ‘‘(ii) the review board has not issued 

23 a decision and order within the 90-day 

24 time period required under paragraph 

25 (8)(C). 


SSpencer on DSK4SPTVN1PROD with BILLS
86 

•S 854 IS

1 ‘‘(B) DE NOVO ACTION.—Such de novo ac2 tion may be brought at law or equity in the 

3 United States district court for the district 

4 where a violation of paragraph (1) or (2) alleg5 edly occurred or where the complainant resided 

6 on the date of such alleged violation. The court 

7 shall have jurisdiction over such action without 

8 regard to the amount in controversy and to 

9 order appropriate relief under paragraph (14). 

10 Such action shall, at the request of either party 

11 to such action, be tried by the court with a 

12 jury. 

13 ‘‘(11) JUDICIAL REVIEW.— 

14 ‘‘(A) TIMELY APPEAL TO THE COURT OF

15 APPEALS.—Any party adversely affected or ag16 grieved by a final decision and order issued 

17 under this subsection may obtain review of such 

18 decision and order in the United States Court 

19 of Appeals for the circuit where the violation, 

20 with respect to which such final decision and 

21 order was issued, allegedly occurred or where 

22 the complainant resided on the date of such al23 leged violation. To obtain such review, a party 

24 shall file a petition for review not later than 60 

25 days after the final decision and order was 


SSpencer on DSK4SPTVN1PROD with BILLS
87 

•S 854 IS

1 issued. Such review shall conform to chapter 7 

2 of title 5, United States Code. The commence3 ment of proceedings under this subparagraph 

4 shall not, unless ordered by the court, operate 

5 as a stay of the final decision and order. 

6 ‘‘(B) LIMITATION ON COLLATERAL AT7 TACK.—An order and decision with respect to 

8 which review may be obtained under subpara9 graph (A) shall not be subject to judicial review 

10 in any criminal or other civil proceeding. 

11 ‘‘(12) ENFORCEMENT OF ORDER.—If a re12 spondent fails to comply with an order issued under 

13 this subsection, the Secretary or the complainant on 

14 whose behalf the order was issued may file a civil ac15 tion for enforcement in the United States district 

16 court for the district in which the violation was 

17 found to occur to enforce such order. If both the 

18 Secretary and the complainant file such action, the 

19 action of the Secretary shall take precedence. The 

20 district court shall have jurisdiction to grant all ap21 propriate relief described in paragraph (14). 

22 ‘‘(13) BURDENS OF PROOF.— 

23 ‘‘(A) CRITERIA FOR DETERMINATION.—In 

24 making a determination or adjudicating a com25 plaint pursuant to this subsection, the SecVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00087 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
88 

•S 854 IS

1 retary, administrative law judge, review board, 

2 or a court may determine that a violation of 

3 paragraph (1) or (2) has occurred only if the 

4 complainant demonstrates that any conduct de5 scribed in paragraph (1) or (2) with respect to 

6 the complainant was a contributing factor in 

7 the adverse action alleged in the complaint. 

8 ‘‘(B) PROHIBITION.—Notwithstanding sub9 paragraph (A), a decision or order that is favor10 able to the complainant shall not be issued in 

11 any administrative or judicial action pursuant 

12 to this subsection if the respondent dem13 onstrates by clear and convincing evidence that 

14 the respondent would have taken the same ad15 verse action in the absence of such conduct. 

16 ‘‘(14) RELIEF.— 

17 ‘‘(A) ORDER FOR RELIEF.—If the Sec18 retary, administrative law judge, review board, 

19 or a court determines that a violation of para20 graph (1) or (2) has occurred, the Secretary, 

21 administrative law judge, review board, or 

22 court, respectively, shall have jurisdiction to 

23 order all appropriate relief, including injunctive 

24 relief, and compensatory and exemplary dam25 ages, including— 


SSpencer on DSK4SPTVN1PROD with BILLS
89 

•S 854 IS

1 ‘‘(i) affirmative action to abate the 

2 violation; 

3 ‘‘(ii) reinstatement without loss of po4 sition or seniority, and restoration of the 

5 terms, rights, conditions, and privileges as6 sociated with the complainant’s employ7 ment, including opportunities for pro8 motions to positions with equivalent or bet9 ter compensation for which the complain10 ant is qualified; 

11 ‘‘(iii) compensatory and consequential 

12 damages sufficient to make the complain13 ant whole (including back pay, prejudg14 ment interest, and other damages); and 

15 ‘‘(iv) expungement of all warnings, 

16 reprimands, or derogatory references that 

17 have been placed in paper or electronic 

18 records or databases of any type relating 

19 to the actions by the complainant that 

20 gave rise to the unfavorable personnel ac21 tion, and, at the complainant’s direction, 

22 transmission of a copy of the decision on 

23 the complaint to any person whom the 

24 complainant reasonably believes may have 

25 received such unfavorable information. 


SSpencer on DSK4SPTVN1PROD with BILLS
90 

•S 854 IS

1 ‘‘(B) ATTORNEYS’ FEES AND COSTS.—If 

2 the Secretary or an administrative law judge, 

3 review board, or court grants an order for relief 

4 under subparagraph (A), the Secretary, admin5 istrative law judge, review board, or court, re6 spectively, shall assess, at the request of the 

7 employee against the employer— 

8 ‘‘(i) reasonable attorneys’ fees; and 

9 ‘‘(ii) costs (including expert witness 

10 fees) reasonably incurred, as determined 

11 by the Secretary, administrative law judge, 

12 review board, or court, respectively, in con13 nection with bringing the complaint upon 

14 which the order was issued. 

15 ‘‘(15) PROCEDURAL RIGHTS.—The rights and 

16 remedies provided for in this subsection may not be 

17 waived by any agreement, policy, form, or condition 

18 of employment, including by any pre-dispute arbitra19 tion agreement or collective bargaining agreement. 

20 ‘‘(16) SAVINGS.—Nothing in this subsection 

21 shall be construed to diminish the rights, privileges, 

22 or remedies of any employee who exercises rights 

23 under any Federal or State law or common law, or 

24 under any collective bargaining agreement. 

25 ‘‘(17) ELECTION OF VENUE.— 


SSpencer on DSK4SPTVN1PROD with BILLS
91 

•S 854 IS

1 ‘‘(A) IN GENERAL.—An employee of an 

2 employer who is located in a State that has a 

3 State plan approved under section 18 may file 

4 a complaint alleging a violation of paragraph 

5 (1) or (2) by such employer with— 

6 ‘‘(i) the Secretary under paragraph 

7 (5); or 

8 ‘‘(ii) a State plan administrator in 

9 such State. 

10 ‘‘(B) REFERRALS.—If— 

11 ‘‘(i) the Secretary receives a complaint 

12 pursuant to subparagraph (A)(i), the Sec13 retary shall not refer such complaint to a 

14 State plan administrator for resolution; or 

15 ‘‘(ii) a State plan administrator re16 ceives a complaint pursuant to subpara17 graph (A)(ii), the State plan administrator 

18 shall not refer such complaint to the Sec19 retary for resolution.’’. 

20 (d) RELATION TO ENFORCEMENT.—Section 17(j) of 

21 such Act (29 U.S.C. 666(j)) is amended by inserting be22 fore the period the following: ‘‘, including the history of 

23 violations under section 11(c)’’. 


SSpencer on DSK4SPTVN1PROD with BILLS
92 

•S 854 IS

1 SEC. 703. VICTIMS’ RIGHTS. 

2 The Occupational Safety and Health Act of 1970 (29 

3 U.S.C. 651 et seq.) is amended by inserting after section 

4 9 (29 U.S.C. 658) the following: 

5 ‘‘SEC. 9A. VICTIMS’ RIGHTS. 

6 ‘‘(a) RIGHTS BEFORE THE SECRETARY.—A victim or 

7 the representative of a victim shall be afforded the right, 

8 with respect to an inspection or investigation conducted 

9 under section 8, to— 

10 ‘‘(1) meet with the Secretary regarding the in11 spection or investigation conducted under such sec12 tion before the Secretary’s decision to issue a cita13 tion or take no action; 

14 ‘‘(2) receive, at no cost, a copy of any citation 

15 or report, issued as a result of such inspection or in16 vestigation, at the same time as the employer re17 ceives such citation or report; 

18 ‘‘(3) be informed of any notice of contest or ad19 dition of parties to the proceedings filed under sec20 tion 10(c); and 

21 ‘‘(4) be provided notification of the date and 

22 time or any proceedings, service of pleadings, and 

23 other relevant documents, and an explanation of the 

24 rights of the employer, employee and employee rep25 resentative, and victim to participate in proceedings 

26 conducted under section 10(c). 


SSpencer on DSK4SPTVN1PROD with BILLS
93 

•S 854 IS

1 ‘‘(b) RIGHTS BEFORE THE COMMISSION.—Upon re2 quest, a victim or representative of a victim shall be af3 forded the right with respect to a work-related bodily in4 jury or death to— 

5 ‘‘(1) be notified of the time and date of any 

6 proceeding before the Commission; 

7 ‘‘(2) receive pleadings and any decisions relat8 ing to the proceedings; and 

9 ‘‘(3) be provided an opportunity to appear and 

10 make a statement in accordance with the rules pre11 scribed by the Commission. 

12 ‘‘(c) MODIFICATION OF CITATION.—Before entering 

13 into an agreement to withdraw or modify a citation issued 

14 as a result of an inspection or investigation of an incident 

15 under section 8, the Secretary shall notify a victim or rep16 resentative of a victim and provide the victim or represent17 ative of a victim with an opportunity to appear and make 

18 a statement before the parties conducting settlement nego19 tiations. In lieu of an appearance, the victim or represent20 ative of the victim may elect to submit a letter to the Sec21 retary and the parties. 

22 ‘‘(d) SECRETARY PROCEDURES.—The Secretary shall 

23 establish procedures— 

24 ‘‘(1) to inform victims of their rights under this 

25 section; and 


SSpencer on DSK4SPTVN1PROD with BILLS
94 

•S 854 IS

1 ‘‘(2) for the informal review of any claim of a 

2 denial of such a right. 

3 ‘‘(e) COMMISSION PROCEDURES AND CONSIDER4 ATIONS.—The Commission shall— 

5 ‘‘(1) establish procedures relating to the rights 

6 of victims to be heard in proceedings before the 

7 Commission; and 

8 ‘‘(2) in rendering any decision, provide due con9 sideration to any statement or information provided 

10 by any victim before the Commission. 

11 ‘‘(f) FAMILY LIAISONS.—The Secretary shall des12 ignate at least 1 employee at each area office of the Occu13 pational Safety and Health Administration to serve as a 

14 family liaison to— 

15 ‘‘(1) keep victims informed of the status of in16 vestigations, enforcement actions, and settlement ne17 gotiations; and 

18 ‘‘(2) assist victims in asserting their rights 

19 under this section. 

20 ‘‘(g) DEFINITION.—In this section, the term ‘victim’ 

21 means— 

22 ‘‘(1) an employee, including a former employee, 

23 who has sustained a work-related injury or illness 

24 that is the subject of an inspection or investigation 

25 conducted under section 8; or 


SSpencer on DSK4SPTVN1PROD with BILLS
95 

•S 854 IS

1 ‘‘(2) a family member (as further defined by 

2 the Secretary) of a victim described in paragraph 

3 (1), if— 

4 ‘‘(A) the victim dies as a result of an inci5 dent that is the subject of an inspection or in6 vestigation conducted under section 8; or 

7 ‘‘(B) the victim sustains a work-related in8 jury or illness that is the subject of an inspec9 tion or investigation conducted under section 8, 

10 and the victim, because of incapacity, cannot 

11 reasonably exercise the rights under this sec12 tion.’’. 

13 SEC. 704. CORRECTION OF SERIOUS, WILLFUL, OR RE14 PEATED VIOLATIONS PENDING CONTEST AND 

15 PROCEDURES FOR A STAY. 

16 Section 10 of the Occupational Safety and Health Act 

17 of 1970 (29 U.S.C. 659) is amended by adding at the end 

18 the following: 

19 ‘‘(d) CORRECTION OF SERIOUS, WILLFUL, OR RE20 PEATED VIOLATIONS PENDING CONTEST AND PROCE21 DURES FOR A STAY.— 

22 ‘‘(1) PERIOD PERMITTED FOR CORRECTION OF

23 SERIOUS, WILLFUL, OR REPEATED VIOLATIONS.— 

24 For each violation which the Secretary designates as 

25 serious, willful, or repeated, the period permitted for 


SSpencer on DSK4SPTVN1PROD with BILLS
96 

•S 854 IS

1 the correction of the violation shall begin to run 

2 upon receipt of the citation. 

3 ‘‘(2) FILING OF A MOTION OF CONTEST.—The 

4 filing of a notice of contest by an employer— 

5 ‘‘(A) shall not operate as a stay of the pe6 riod for correction of a violation designated as 

7 serious, willful, or repeated; and 

8 ‘‘(B) may operate as a stay of the period 

9 for correction of a violation not designated by 

10 the Secretary as serious, willful, or repeated. 

11 ‘‘(3) CRITERIA AND RULES OF PROCEDURE FOR

12 STAYS.— 

13 ‘‘(A) MOTION FOR A STAY.—An employer 

14 may file with the Commission a motion to stay 

15 a period for the correction of a violation des16 ignated as serious, willful, or repeated. 

17 ‘‘(B) CRITERIA.—In determining whether 

18 a stay should be issued on the basis of a motion 

19 filed under subparagraph (A), the Commission 

20 shall consider whether— 

21 ‘‘(i) the employer has demonstrated a 

22 substantial likelihood of success on its con23 test to the citation; 

24 ‘‘(ii) the employer will suffer irrep25 arable harm absent a stay; and 


SSpencer on DSK4SPTVN1PROD with BILLS
97 

•S 854 IS

1 ‘‘(iii) a stay will adversely affect the 

2 health or safety of workers. 

3 ‘‘(C) RULES OF PROCEDURE.—The Com4 mission shall develop rules of procedure for con5 ducting a hearing on a motion filed under sub6 paragraph (A) on an expedited basis. At a min7 imum, such rules shall provide: 

8 ‘‘(i) That a hearing before an admin9 istrative law judge shall occur not later 

10 than 15 days following the filing of the 

11 motion for a stay (unless extended at the 

12 request of the employer), and shall provide 

13 for a decision on the motion not later than 

14 15 days following the hearing (unless ex15 tended at the request of the employer). 

16 ‘‘(ii) That a decision of an administra17 tive law judge on a motion for stay is ren18 dered on a timely basis. 

19 ‘‘(iii) That if a party is aggrieved by 

20 a decision issued by an administrative law 

21 judge regarding the stay, such party has 

22 the right to file an objection with the Com23 mission not later than 5 days after receipt 

24 of the administrative law judge’s decision. 

25 Within 10 days after receipt of the objecVerDate Sep 11 2014 04:29 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00097 Fmt 6652 Sfmt 6201 E:\BILLS\S854.IS S854

SSpencer on DSK4SPTVN1PROD with BILLS
98 

•S 854 IS

1 tion, a Commissioner, if a quorum is seat2 ed pursuant to section 12(f), shall decide 

3 whether to grant review of the objection. 

4 If, within 10 days after receipt of the ob5 jection, no decision is made on whether to 

6 review the decision of the administrative 

7 law judge, the Commission declines to re8 view such decision, or no quorum is seated, 

9 the decision of the administrative law 

10 judge shall become a final order of the 

11 Commission. If the Commission grants re12 view of the objection, the Commission shall 

13 issue a decision regarding the stay not 

14 later than 30 days after receipt of the ob15 jection. If the Commission fails to issue 

16 such decision within 30 days, the decision 

17 of the administrative law judge shall be18 come a final order of the Commission. 

19 ‘‘(iv) For notification to employees or 

20 representatives of affected employees of re21 quests for such hearings and shall provide 

22 affected employees or representatives of af23 fected employees an opportunity to partici24 pate as parties to such hearings.’’. 


SSpencer on DSK4SPTVN1PROD with BILLS
99 

•S 854 IS

1 SEC. 705. CONFORMING AMENDMENTS. 

2 Section 17(d) of the Occupational Safety and Health 

3 Act of 1970 (29 U.S.C. 666(d)) is amended to read as 

4 follows: 

5 ‘‘(d) Any employer who fails to correct a violation 

6 designated by the Secretary as serious, willful, or repeated 

7 and for which a citation has been issued under section 9(a) 

8 within the period permitted for its correction (and a stay 

9 has not been issued by the Commission under section 

10 10(d)) may be assessed a civil penalty of not more than 

11 $7,000 for each day during which such failure or violation 

12 continues. Any employer who fails to correct any other vio13 lation for which a citation has been issued under section 

14 9(a) of this title within the period permitted for its correc15 tion (which period shall not begin to run until the date 

16 of the final order of the Commission in the case of any 

17 review proceeding under section 10 initiated by the em18 ployer in good faith and not solely for delay of avoidance 

19 of penalties) may be assessed a civil penalty of not more 

20 than $7,000 for each day during which such failure or vio21 lation continues.’’. 

22 SEC. 706. CIVIL PENALTIES. 

23 (a) IN GENERAL.—Section 17 of the Occupational 

24 Safety and Health Act of 1970 (29 U.S.C. 666) is amend25 ed— 

26 (1) in subsection (a)— 


SSpencer on DSK4SPTVN1PROD with BILLS
100 

•S 854 IS

1 (A) by striking ‘‘$70,000’’ and inserting 

2 ‘‘$120,000’’; 

3 (B) by striking ‘‘$5,000’’ and inserting 

4 ‘‘$8,000’’; and 

5 (C) by adding at the end the following: ‘‘In 

6 determining whether a violation is repeated, the 

7 Secretary shall consider the employer’s history 

8 of violations under this Act and under State oc9 cupational safety and health plans established 

10 under section 18. If such a willful or repeated 

11 violation caused or contributed to the death of 

12 an employee, such civil penalty amounts shall 

13 be increased to not more than $250,000 for 

14 each such violation, but not less than $50,000 

15 for each such violation, except that for an em16 ployer with 25 or fewer employees such penalty 

17 shall not be less than $25,000 for each such 

18 violation.’’; 

19 (2) in subsection (b)— 

20 (A) by striking ‘‘$7,000’’ and inserting 

21 ‘‘$12,000’’; and 

22 (B) by adding at the end the following: ‘‘If 

23 such a violation caused or contributed to the 

24 death of an employee, such civil penalty 

25 amounts shall be increased to not more than 


SSpencer on DSK4SPTVN1PROD with BILLS
101 

•S 854 IS

1 $50,000 for each such violation, but not less 

2 than $20,000 for each such violation, except 

3 that for an employer with 25 or fewer employ4 ees such penalty shall not be less than $10,000 

5 for each such violation.’’; 

6 (3) in subsection (c), by striking ‘‘$7,000’’ and 

7 inserting ‘‘$12,000’’; 

8 (4) in subsection (d), as amended by section 

9 705, by striking ‘‘$7,000’’ each place it occurs and 

10 inserting ‘‘$12,000’’; 

11 (5) by redesignating subsections (e) through (l) 

12 as subsections (f) through (m), respectively; and 

13 (6) in subsection (j) (as redesignated by para14 graph (5)), by striking ‘‘$7,000’’ and inserting 

15 ‘‘$12,000;’’. 

16 (b) INFLATION ADJUSTMENT.—Section 17 of such 

17 Act is further amended by inserting after subsection (d) 

18 the following: 

19 ‘‘(e) Amounts provided under this section for civil 

20 penalties shall be adjusted by the Secretary at least once 

21 during each 4-year period beginning January 1 after the 

22 date of enactment of the Robert C. Byrd Mine Safety Pro23 tection Act of 2017, to account for the percentage increase 

24 or decrease in the Consumer Price Index for all urban con25 sumers during such period.’’. 


SSpencer on DSK4SPTVN1PROD with BILLS
102 

•S 854 IS

1 SEC. 707. CRIMINAL PENALTIES. 

2 (a) IN GENERAL.—Section 17 of the Occupational 

3 Safety and Health Act of 1970 (29 U.S.C. 666) (as 

4 amended by sections 705 and 706) is further amended— 

5 (1) by amending subsection (f), as so redesig6 nated, to read as follows: 

7 ‘‘(f)(1) Any employer who knowingly violates any 

8 standard, rule, or order promulgated under section 6, or 

9 of any regulation prescribed under this Act, and that viola10 tion caused or contributed to the death of any employee, 

11 shall, upon conviction, be punished by a fine in accordance 

12 with title 18, United States Code, by imprisonment for 

13 not more than 10 years, or by both, except that if the 

14 conviction is for a violation committed after a first convic15 tion of such person under this subsection or subsection 

16 (i), punishment shall be by a fine in accordance title 18, 

17 United States Code, by imprisonment for not more than 

18 20 years, or by both. 

19 ‘‘(2) For the purpose of this subsection, the term ‘em20 ployer’ means, in addition to the definition contained in 

21 section 3, any officer or director.’’; 

22 (2) in subsection (g), as so redesignated, by 

23 striking ‘‘fine of not more than $1,000 or by impris24 onment for not more than six months,’’ and insert25 ing ‘‘fine in accordance with title 18, United States 


SSpencer on DSK4SPTVN1PROD with BILLS
103 

•S 854 IS

1 Code, or by imprisonment for not more than 2 

2 years,’’; 

3 (3) in subsection (h), as so redesignated, by 

4 striking ‘‘fine of not more than $10,000, or by im5 prisonment for not more than six months,’’ and in6 serting ‘‘fine in accordance with title 18, United 

7 States Code, or by imprisonment for not more than 

8 5 years,’’; 

9 (4) by redesignating subsections (j) through 

10 (m), as so redesignated, as subsections (k) through 

11 (n), respectively; and 

12 (5) by inserting after subsection (i) the fol13 lowing: 

14 ‘‘(j)(1) Any employer who knowingly violates any 

15 standard, rule, or order promulgated under section 6, or 

16 any regulation prescribed under this Act, and that viola17 tion causes or contributes to serious bodily harm to any 

18 employee but does not cause death to any employee, shall, 

19 upon conviction, be punished by a fine in accordance with 

20 title 18, United States Code, by imprisonment for not 

21 more than 5 years, or by both, except that if the conviction 

22 is for a violation committed after a first conviction of such 

23 person under this subsection or subsection (e), punishment 

24 shall be by a fine in accordance with title 18, United 


SSpencer on DSK4SPTVN1PROD with BILLS
104 

•S 854 IS

1 States Code, by imprisonment for not more than 10 years, 

2 or by both. 

3 ‘‘(2) For the purpose of this subsection, the term ‘em4 ployer’ means, in addition to the definition contained in 

5 section 3, any officer or director. 

6 ‘‘(3) For purposes of this subsection, the term ‘seri7 ous bodily harm’ means bodily injury or illness that in8 volves— 

9 ‘‘(A) a substantial risk of death; 

10 ‘‘(B) protracted unconsciousness; 

11 ‘‘(C) protracted and obvious physical disfigure12 ment; or 

13 ‘‘(D) protracted loss or impairment, either tem14 porary or permanent, of the function of a bodily 

15 member, organ, or mental faculty.’’. 

16 (b) JURISDICTION FOR PROSECUTION UNDER STATE

17 AND LOCAL CRIMINAL LAWS.—Section 17 of such Act (29 

18 U.S.C. 666) (as amended by this Act) is further amended 

19 by adding at the end the following: 

20 ‘‘(o) Nothing in this Act shall preclude a State or 

21 local law enforcement agency from conducting criminal 

22 prosecutions in accordance with the laws of such State or 

23 locality.’’. 


SSpencer on DSK4SPTVN1PROD with BILLS
105 

•S 854 IS

1 SEC. 708. PENALTIES. 

2 Subsection (n) of section 17 the Occupational Safety 

3 and Health Act of 1970 (29 U.S.C. 666), as redesignated 

4 by sections 706 and 707, is amended by adding at the 

5 end the following: ‘‘Pre-final order interest on such pen6 alties shall begin to accrue on the date the party contests 

7 a citation issued under this Act, and shall end upon the 

8 issuance of the final order. Such pre-final order interest 

9 shall be calculated at the current underpayment rate de10 termined by the Secretary of the Treasury pursuant to 

11 section 6621 of the Internal Revenue Code of 1986, and 

12 shall be compounded daily. Post-final order interest shall 

13 begin to accrue 30 days after the date a final order of 

14 the Commission or the court is issued, and shall be 

15 charged at the rate of 8 percent per year.’’. 

16 SEC. 709. AUTHORIZATION OF COOPERATIVE AGREEMENTS 

17 BY NIOSH OFFICE OF MINE SAFETY AND 

18 HEALTH. 

19 Section 22(h)(3) of the Occupational Safety and 

20 Health Act of 1970 (29 U.S.C. 671(h)(3)) is amended— 

21 (1) in subparagraph (B), by striking ‘‘and’’ at 

22 the end; 

23 (2) by redesignating subparagraph (C) as sub24 paragraph (D); and 

25 (3) by inserting after subparagraph (B) the fol26 lowing: 


SSpencer on DSK4SPTVN1PROD with BILLS
106 

•S 854 IS

1 ‘‘(C) enter into cooperative agreements or 

2 contracts with international institutions and 

3 private entities to improve mine safety and 

4 health through the development and evaluation 

5 of new interventions; and’’. 

6 SEC. 710. EFFECTIVE DATE. 

7 (a) GENERAL RULE.—Except as provided for in sub8 section (b), this title and the amendments made by this 

9 title shall take effect not later than 90 days after the date 

10 of the enactment of this Act. 

11 (b) EXCEPTION FOR STATES AND POLITICAL SUB12 DIVISIONS.—The following are exceptions to the effective 

13 date described in subsection (a): 

14 (1) A State that has a State plan approved 

15 under section 18 of the Occupational Safety and 

16 Health Act of 1970 (29 U.S.C. 667) shall amend its 

17 State plan to conform with the requirements of this 

18 title, and the amendments made by this title, not 

19 later than 12 months after the date of the enact20 ment of this Act. The Secretary of Labor may ex21 tend the period for a State to make such amend22 ments to its State plan by not more than 12 months, 

23 if the State’s legislature is not in session during the 

24 12-month period beginning with the date of the en25 actment of this Act. Such amendments to the State 


SSpencer on DSK4SPTVN1PROD with BILLS
107 

•S 854 IS

1 plan shall take effect not later than 90 days after 

2 the adoption of such amendments by such State. 

3 (2) This title and the amendments made by this 

4 Act shall take effect not later than 36 months after 

5 the date of the enactment of this Act with respect 

6 to a workplace of a State, or a political subdivision 

7 of a State, that does not have a State plan approved 

8 under such section 18 (29 U.S.C. 667). 

Æ 


SSpencer on DSK4SPTVN1PROD with BILLS