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[House Report 111-487]
[From the U.S. Government Publishing Office]

111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     111-487

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

 
 GRANTING THE AUTHORITY PROVIDED UNDER CLAUSE 4(c)(3) OF RULE X OF THE 
RULES OF THE HOUSE OF REPRESENTATIVES TO THE COMMITTEE ON EDUCATION AND 
 LABOR FOR PURPOSES OF ITS INVESTIGATION INTO UNDERGROUND COAL MINING 
                                 SAFETY

                                _______
                                

May 19, 2010.--Referred to the House Calendar and ordered to be printed

                                _______
                                

  Ms. Slaughter, from the Committee on Rules, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                      [To accompany H. Res. 1363]

    The Committee on Rules, to whom was referred the resolution 
(H. Res. 1363) granting the authority provided under clause 
4(c)(3) of rule X of the Rules of the House of Representatives 
to the Committee on Education and Labor for purposes of its 
investigation into underground coal mining safety, having 
considered the same, report favorably thereon without amendment 
and recommend that the resolution be agreed to.

                       PURPOSE OF THE RESOLUTION

    The purpose of H. Res. 1363 is to grant the authority 
provided under clause 4(c)(3) of rule X of the Rules of the 
House of Representatives to the Committee on Education and 
Labor for purposes of its investigation into underground coal 
mining safety.

                       SUMMARY OF THE RESOLUTION

    H. Res. 1363 applies to the investigation by the Committee 
on Education and Labor into underground coal mine operator 
compliance with the Federal Mine Safety and Health Act of 1977, 
as amended, and into other related matters.
    Clause 4(c)(3) of rule X of the Rules of the House of 
Representatives, as applied to the Education and Labor 
Committee by H. Res. 1363, would allow the Education and Labor 
Committee to adopt a rule authorizing and regulating the taking 
of depositions by a Member of or counsel to the committee, 
including by issuing a subpoena. Clause 4(c)(3) further states 
that a committee rule may provide that a deponent be directed 
to subscribe to an oath or affirmation before a person 
authorized by law to administer oaths and affirmations. A 
committee rule shall ensure that the Members and staff of the 
committee are accorded equitable treatment with respect to 
notice of and a reasonable opportunity to participate in any 
proceedings thereunder. Finally, clause 4(c)(3) provides that 
deposition testimony retain the character of discovery until 
offered for admission into evidence before the committee, at 
which time any proper objection will be timely.

              BACKGROUND AND SUMMARY OF THE INVESTIGATION

    Recent incidents such as the August 2007 tragedy at the 
Crandall Canyon Mine near Huntington, Utah and the April 2010 
explosion at the Upper Big Branch Mine in Raleigh County, West 
Virginia have demonstrated the urgency of improving safety 
conditions for miners.
    Among the problems being investigated by the Education and 
Labor Committee is the rapidly growing number of mine safety 
enforcement cases currently pending before the Federal Mine 
Safety and Health Review Commission (FMSHRC), an independent 
agency that provides administrative trial and appellate review 
of contested citations, penalties, and worker retaliation 
cases. As the result of stepped-up enforcement and tougher 
penalties after a spate of mine tragedies in 2005 and 2006, 
mine owners tripled the number of violations they appeal and 
are now litigating 67 percent of all penalties.\1\ The backlog 
of cases FMSHRC must review has jumped from 2,100 in 2006 to 
approximately 16,000 in February, 2010.\2\
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    \1\Hearing on Reducing the Growing Backlog of Contested Mine Safety 
Cases Before the U.S. House Comm. on Educ. & Labor, 111th Cong., 2d 
Sess. (Feb. 23, 2010) (statement of Joseph A. Main, Asst. Sec. of Labor 
for Mine Safety and Health).
    \2\Id. (statement of Mary Lu Jordan, Chairman, Federal Mine Safety 
and Health Review Commission).
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    Because of this backlog, numerous mines that received 
safety citations, and might have otherwise been put on warning 
for possible addition to the Pattern of Violations (POV) list, 
have gone without such warning, pending final adjudication of 
their citations. It is possible that, had these mines received 
POV warnings, safety conditions would have improved 
significantly, as past experience indicates that mining 
companies make substantial improvements once warned of 
impending addition to the POV list. Upper Big Branch was one of 
the mines that, but for a lack of final adjudications on enough 
of its citations, would very likely have been warned or faced 
designation as having a Pattern of Violations. Several other 
mines owned by Massey Energy, Upper Big Branch's owner, also 
are on a Department of Labor list of such mines.

Summary of Congressional Investigation

    The Committee on Education and Labor has been engaging in 
oversight and investigatory activities concerning safety 
conditions at underground coal mines, the administration of the 
laws governing mine safety, and the mining industry's 
compliance with the law.
    The Committee's oversight activities in the summer of 2009 
involved several months of conversations with stakeholders 
about the backlog at FMSHRC, the causes of the backlog, and 
what the consequences of such a backlog might be.
    On February 23, 2010, the Committee held an oversight 
hearing entitled ``Reducing the Growing Backlog of Contested 
Mine Safety Cases.''\3\ Witnesses included: (1) Mary Lu Jordan, 
Chairman of FMSHRC; (2) Joe Main, Assistant Secretary of Labor 
for the Mine Safety and Health Administration; (3) Cecil 
Roberts, President of the United Mine Workers of America; and, 
(4) Bruce Waltzman, Senior Vice President for Regulatory 
Affairs for the National Mining Association.
---------------------------------------------------------------------------
    \3\Hearing on Reducing the Growing Backlog of Contested Mine Safety 
Cases Before the U.S. House Comm. on Educ. & Labor, 111th Cong., 2d 
Sess. (Feb. 23, 2010).
---------------------------------------------------------------------------
    Tragically, on April 5, 2010, an explosion at the Upper Big 
Branch Mine killed 29 coal miners. This disaster, the worst 
mine disaster in the United States since 1970, compelled the 
Committee to move from oversight activities into a broader 
investigation of underground mine safety. The Committee is 
investigating safety violations at mines generally, and 
specifically whether there are practices at the corporate level 
that are contributing to safety problems at the mine level.
    The Committee also has issued a document request to several 
of the companies involved in underground mining that had the 
most mines (or the largest number of employees working in 
mines) with large numbers of citations that have not yet been 
finally adjudicated, and the most mines on the Pattern of 
Violations list. Moving forward, the Committee will continue 
speaking with the full range of industry participants and 
stakeholders, and examining relevant documents.

                 BACKGROUND AND NEED FOR THE RESOLUTION

    The Supreme Court and congressional scholars have 
recognized that, despite silence on the issue in the 
Constitution, Congress does have the authority to conduct 
investigations.\4\ As the Court explained:
---------------------------------------------------------------------------
    \4\McGrain v. Daugherty, 273 U.S. 135 (1927); Morton Rosenberg, 
Congressional Research Serv., Investigative Oversight: An Introduction 
to the Law, Practice and Procedure of Congressional Inquiry (1995).

    A legislative body cannot legislate wisely or effectively 
in the absence of information respecting the conditions which 
the legislation is intended to affect or change. . . . 
Experience has taught that mere requests for such information 
often are unavailing, and also that information which is 
volunteered is not always accurate or complete; so some means 
of compulsion are essential to obtain what is needed.\5\
---------------------------------------------------------------------------
    \5\McGrain, 273 U.S. at 175.

    In furtherance of this, the Rules of the House of 
Representatives, which establish and convey authority to the 
congressional committees, provide such committees with the 
general tools needed to exercise investigative power.\6\ More 
specifically, rule XI of the Rules of the House of 
Representatives provides that:
---------------------------------------------------------------------------
    \6\Rules of the House of Representatives, Rule XI, 111th Cong. 
(2009).
---------------------------------------------------------------------------
           Committees may set a quorum of no less than 
        two Members for taking testimony and receiving 
        evidence;\7\
---------------------------------------------------------------------------
    \7\House Rule XI cl. 2(h)(2).
---------------------------------------------------------------------------
           Witnesses at committee hearings are afforded 
        certain rights that balance the interests of committees 
        in conducting oversight, including the right to 
        counsel, the right to a copy of the committee and House 
        rules, the right to petition to testify in executive 
        session, the right to submit statements for the record, 
        and the right to obtain a copy of their testimony;\8\
---------------------------------------------------------------------------
    \8\Id. Cl. 2(k).
---------------------------------------------------------------------------
           Committees are authorized to sit and act and 
        hold hearings within the United States regardless of 
        whether the House is in session, has recessed, or has 
        adjourned;\9\
---------------------------------------------------------------------------
    \9\cl. 2(m)(1)(A).
---------------------------------------------------------------------------
           Committees may require, by subpoena or 
        otherwise, the attendance and testimony of witnesses 
        and the production of books, records, correspondence, 
        memoranda, papers, and documents it deems 
        necessary.\10\
---------------------------------------------------------------------------
    \10\Id. cl. 2(m)(1)(B).
---------------------------------------------------------------------------
    Such tools, however, are not sufficient in all cases. In 
some investigations, not all subjects or people with 
information related to the investigation will agree to 
voluntary interviews; such individuals often need to be 
compelled to cooperate. It should be noted that some witnesses 
may refuse to cooperate with voluntary interviews merely to 
hide information, while others fear retribution from employers 
if they do cooperate.
    In these circumstances, the power to compel witnesses to 
testify can be an invaluable investigative tool. The primary 
method of compulsion contemplated by the Rules of the House is 
a subpoena for a hearing. In the course of some investigations, 
however, the nature of witness testimony, while significant, 
might not justify the cost and effort of calling the witness to 
appear at a committee hearing. For this reason, the House has, 
on occasion, granted special powers to standing committees and 
special committees so that they may conduct Member and staff 
depositions of witnesses.
    With respect to standing committees, in the 104th Congress, 
the Committee on Rules reported and the House adopted a 
resolution providing special authorities to the Committee on 
Government Reform and Oversight to obtain testimony on the 
White House Travel Office matter.\11\ The special authorities 
included permitting the staff of the Government Reform 
Committee to take depositions.
---------------------------------------------------------------------------
    \11\H. Res. 369, 104th Cong. (1996).
---------------------------------------------------------------------------
    In the 105th Congress, the Committee on Rules and the House 
adopted two resolutions that authorized committee staffs to 
take depositions. First, House Resolution 167 provided special 
investigative authorities to the Committee on Government Reform 
and Oversight regarding political fundraising 
improprieties.\12\ Second, House Resolution 507 authorized the 
Committee on Education and Workforce to take staff depositions 
in its investigation of the administration of labor laws and 
the International Brotherhood of Teamsters.\13\
---------------------------------------------------------------------------
    \12\H. Res. 167, 105th Cong. (1997).
    \13\H. Res. 507, 105th Cong. (1998).
---------------------------------------------------------------------------
    The Committee on the Judiciary has been given Member and 
staff deposition authority several times in the last two 
Congresses. House Resolution 1448 in the 110th Congress and 
House Resolution 15 in the 111th Congress granted deposition 
authority for the Committee's inquiry into whether the House 
should impeach District Court Judge G. Thomas Porteus.\14\ 
House Resolution 424 in the 111th Congress granted the same 
authority for the Committee's impeachment inquiry concerning 
District Judge Samuel B. Kent.\15\ House Resolution 5 in the 
111th Congress gave the Committee authority for its Members or 
counsel to take depositions related to the investigation into 
the firing of certain U.S. Attorneys.\16\
---------------------------------------------------------------------------
    \14\H. Res. 1448, 110th Cong. (2008); H. Res. 15, 111th Cong. 
(2009).
    \15\H. Res. 424, 111th Cong. (2009).
    \16\H. Res. 5, cl. 4(f), 111th Cong. (2009).
---------------------------------------------------------------------------
    Also in the 110th and 111th Congresses, the standing rules 
of the House have authorized the Committee on Oversight and 
Government Reform (formerly known as the Committee on 
Government Reform and the Committee on Government Reform and 
Oversight) to take staff depositions for any investigation.\17\ 
The authority is not limited to specific investigations but 
instead is part of that committee's broad mandate to oversee 
and investigate the operation of the Federal government.
---------------------------------------------------------------------------
    \17\House Rule X cl. 4(c)(3).
---------------------------------------------------------------------------
    Finally, the Committee on Education and Labor received 
deposition authority in the 110th Congress for purposes of its 
2007-2008 investigation into the deaths of nine miners and 
rescue workers at the Crandall Canyon Mine near Huntington, 
Utah.\18\ These are just the most recent examples in which the 
House has permitted the staffs of standing committees to take 
depositions.\19\
---------------------------------------------------------------------------
    \18\H. Res. 836, 110th Cong. (2007).
    \19\As noted, the House also has passed resolutions that created 
special or select committees with staff deposition authority. For 
instance, in the 105th Congress, House Resolution 463 established a 
Select Committee on U.S. National Security and Military/Commercial 
Concerns with the People's Republic of China. H. Res. 463, 105th Cong. 
(1998).
---------------------------------------------------------------------------
    It is this type of deposition authority that is proposed in 
H. Res. 1363 to be granted to the Education and Labor 
Committee. At the outset, it should be noted that the authority 
suggested in H. Res. 1363 is limited to the investigation of 
underground coal mining safety. The Committee on Rules believes 
that vigorous oversight is necessary to learn of any systemic 
problems in the industry so that solutions may be found to 
prevent future death and disability across the mining industry, 
the tragic importance of which is demonstrated by the recent 
Upper Big Branch Mine disaster.\20\
---------------------------------------------------------------------------
    \20\In 2006, there were three serious mine accidents that killed 18 
miners. H.R. Rep. No. 110-457, 110th Cong., 1st Sess. 20 (2007). Those 
disasters led to the passage of the MINER Act. Id. Nevertheless, just a 
little over one year after enactment of the MINER Act, the country 
witnessed another mine disaster. In fact, mining fatalities continue to 
occur at a rate more than seven times the average for all private 
industries, exceeding other dangerous occupations such as construction 
and trucking. Id. at 31. According to the latest information provided 
by MSHA, 195 miners have died from January 1, 2007, through May 17, 
2010. Mine Safety and Health Administration (2010), http://
www.msha.gov/stats/charts/allstates.pdf.
---------------------------------------------------------------------------
    Deposition authority would be useful to the Education and 
Labor Committee in two ways. As indicated previously, it would 
serve as a means of compelling the assistance of recalcitrant 
witnesses whose testimony might not rise to the level of 
committee hearing subjects. In other cases, the deposition 
authority will allow for subsequent questioning of deposed 
witnesses at a committee hearing to be more focused and 
illuminating.
    The vehicle of a deposition also will allow Education and 
Labor Committee Members and counsel to probe efficiently the 
scope and basis for any deponent's refusal to answer specific 
questions by the invocation of his or her Fifth Amendment right 
against self-incrimination or any other privilege. Claims of 
privilege can often be more fully and efficiently addressed in 
a deposition rather than at a public hearing.
    The Education and Labor Committee's recent experience with 
deposition authority has demonstrated such authority's 
usefulness; the Committee indicates that deposition authority 
was important in conducting its successful investigation of the 
Crandall Canyon Mine disaster, which led to a criminal 
referral. Whether the Committee actually issued a subpoena for 
a deposition or not, witnesses' knowledge that the Committee 
could issue such a subpoena may have caused reluctant witnesses 
to cooperate. It also may have given cover to witnesses who 
wanted to aid the investigation but were afraid to be viewed as 
disloyal to their employers or become blacklisted by the mining 
industry as whistleblowers.
    Finally, the deposition authority reflected in H. Res. 1363 
contains significant protections for both Members of the 
Education and Labor Committee and potential deposition 
witnesses. For example, any Education and Labor Committee rule 
promulgating the authority must ensure that the minority 
Members and staff of the committee are accorded equitable 
treatment with respect to notice of and a reasonable 
opportunity to participate in any proceedings thereunder. 
Further, deposition testimony will retain the character of 
discovery until offered for admission into evidence before the 
committee, at which time any proper objection will be timely.
    It also should be noted that, when the Education and Labor 
Committee adopted its rules for the 111th Congress, it included 
a deposition procedure rule so that they would be able to 
expeditiously seek and exercise deposition authority in the 
event it were to become appropriate.\21\ Just as in the 110th 
Congress, the Education and Labor Committee's deposition rule, 
the text of which is attached as an appendix to this report, 
includes many provisions to clarify the rights of Members and 
witnesses. For instance, the Chairman or majority staff will be 
required to consult with the Ranking Minority Member or 
minority staff no less than three days before any notice or 
subpoena for a deposition is issued. Upon completion of such 
consultation, all Members of the Committee will receive written 
notice that a notice or subpoena for a deposition will be 
issued. At the deposition, a witness may be accompanied by 
counsel to advise of his or her rights. Counsel for the entity 
employing the deponent also may attend if the scope of the 
deposition is expected to cover actions taken as part of the 
deponent's employment.
---------------------------------------------------------------------------
    \21\This is similar to a number of previous circumstances when 
standing committees were given deposition authority. The committees 
promulgated their own rules governing the specific exercise of the 
deposition power granted by the House resolutions and rules. H.R. Rep. 
No. 105-658, at 17, 105th Cong., 2d Sess. (1998) (regarding staff 
deposition authority for the Committee on Education and Workforce); 
H.R. Rep. No. 105-139, at 33, 105th Cong., 1st Sess. (1997) (regarding 
staff deposition authority for the Committee on Government Reform and 
Oversight); 142 Cong. Rec. H1963 (daily ed. Mar. 7, 1996) (regarding 
staff deposition authority for the Committee on Government Reform and 
Oversight); H.R. Rep. No. 110-473, at 8, 110th Cong., 1st Sess. (2007) 
(regarding staff deposition authority for the Committee on Education 
and Labor). In general, these committee rules have governed deposition 
notice requirements, the rights of witnesses and their counsel, the 
rights of committee Members, the transcription of depositions, and the 
admission of deposition testimony into committee records.
---------------------------------------------------------------------------
    A deponent may decline to answer a question if needed to 
preserve a privilege. If a witness refuses to answer a question 
and objects, the Chairman may rule on such objection after the 
deposition has adjourned. If the Chairman overrules any 
objection and directs the witness to answer any questions to 
which privilege objections were lodged, such ruling must be 
filed with the clerk of the Committee and provided to the 
Committee Members and the deponent no less than three days 
before it is implemented. If a Committee Member appeals in 
writing the ruling of the Chairman, then the appeal will be 
preserved for Committee consideration.
    Any depositions will have to be transcribed 
stenographically and also may be electronically recorded. 
Majority and minority staff will receive copies of the 
deposition transcript at the same time. The electronic 
recording, however, will not supersede the certified written 
transcript.
    After receiving the initial transcript, majority staff will 
make it available to the deponent or deponent's counsel. No 
later than ten business days thereafter, the deponent may 
suggest any technical or substantive changes. Any substantive 
changes, however, must be suggested by the deponent in writing 
to the Committee and will be included as an appendix to the 
transcript. Majority and minority staff will be provided with a 
copy of the final transcript at the same time.
    The Chairman and Ranking Minority Member of the Education 
and Labor Committee will consult regarding the release of 
deposition transcripts or any electronic recordings. If either 
objects in writing to a proposed release of a deposition 
transcript or recording, the matter will be referred to the 
Education and Labor Committee for prompt resolution.
    In short, the grant of staff deposition authority is an 
invaluable and not unprecedented power for congressional 
committees to exercise their obligations to conduct oversight 
and to legislate. House Resolution 1363 proposes to grant to 
the Education and Labor Committee such authority as part of its 
investigation into the safety conditions in underground coal 
mines.

             SECTION-BY-SECTION ANALYSIS OF THE RESOLUTION

    Section 1 extends the investigative authority granted to 
the Committee on Oversight and Government Reform under clause 
4(c)(3) of rule X of the Rules of the House of Representatives 
to the Committee on Education and Labor for purposes of its 
investigation into underground coal mine operator compliance 
with the Federal Mine Safety and Health Act of 1977, as 
amended, and into other related matters.
    Clause 4(c)(3) of rule X of the Rules of the House of 
Representatives, as applied to the Education and Labor 
Committee by H. Res. 1363, allows the Education and Labor 
Committee to adopt a rule authorizing and regulating the taking 
of depositions by a Member of or counsel to the committee, 
including by issuing a subpoena. Rule X further states that a 
committee rule may provide that a deponent be directed to 
subscribe to an oath or affirmation before a person authorized 
by law to administer oaths and affirmations. Any rule adopted 
by the Committee must ensure that the Members and staff of the 
committee are accorded equitable treatment with respect to 
notice of and a reasonable opportunity to participate in any 
proceedings thereunder. Finally, rule X provides that 
deposition testimony retain the character of discovery until 
offered for admission into evidence before the committee, at 
which time any proper objection will be timely.
    Section 2 requires that, at the end of the second session 
of the 111th Congress, the Chair of the Education and Labor 
Committee transmit to the Rules Committee a report detailing 
how the Education and Labor Committee has used the authority 
granted by the resolution. The report will indicate: (1) the 
total number of depositions taken; (2) the number of 
depositions taken pursuant to subpoenas; and, (3) the name of 
each deponent that the Committee has publicly identified by 
name as a deponent. The Committee on Rules intends that the 
term ``publicly identified'' be interpreted broadly, so that 
deponents would be considered to have been identified if the 
transcript or electronic record of their deposition were 
released, or if they were identified by name in a committee 
report, press release, in another official Committee 
publication, or at a committee hearing.

                        COMMITTEE CONSIDERATION

    H. Res. 1363 was introduced by Education and Labor 
Committee Chairman George Miller on May 18, 2010, and referred 
to the Committee on Rules. On May 19, 2010, the Committee on 
Rules held a hearing on H. Res. 1363 and received testimony 
from the Honorable George Miller, Chairman of the Committee on 
Education and Labor.
    On May 19, 2010, the Committee on Rules met on H. Res. 1363 
in open session and ordered the resolution favorably reported 
to the House by a non-record vote.

                            ROLL CALL VOTES

    No record votes were taken during consideration of H. Res. 
1363.

                    COMPLIANCE WITH HOUSE RULE XIII

Statement of oversight findings and recommendations of the Committee

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

Congressional Budget Office cost estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee states, with 
respect to H. Res. 1363, that the Director of the Congressional 
Budget Office did not submit a cost estimate and comparison 
under section 402 of the Congressional Budget Act of 1974.

Statement of general performance goals and objectives

    In accordance with clause 3(c) of rule XIII of the Rules of 
the House of Representatives, the goal of H. Res. 1363 is to 
provide the authority necessary for the Committee on Education 
and Labor to conduct a full investigation into underground coal 
mine operator compliance with the Federal Mine Safety and 
Health Act of 1977, as amended, and into other related matters.

                             MINORITY VIEWS

    We share the Majority's concerns regarding the recent 
mining accidents. The most recent event, which took the lives 
of 29 West Virginia miners in one of the worst accidents in the 
last 40 years, demonstrates the need for vigorous Congressional 
oversight. Without a thorough investigation and evaluation, 
Congress will be unable to objectively determine whether the 
executive branch agencies charged with protecting miners are 
performing their job, and whether changes are needed to ensure 
that those agencies fulfill their obligations to miners, their 
families, and the public.
    However, as we articulated in our views in the report to 
accompany H. Res. 836 in the 110th Congress (H. Rept. 110-473), 
we are troubled by the potential for abuse of staff deposition 
authority, and believe that it must only be granted sparingly, 
and with stringent oversight. It is essential that the ranking 
minority member always have the ability to meaningfully 
participate in the information gathering process, and have 
recourse when potential abuses occur.
    We are pleased that we have not received reports of abuses 
in the recent instances where this authority was granted to the 
Education and Labor Committee and the Committee on the 
Judiciary. We believe that the rule adopted by the Committee on 
Education and Labor should represent the minimum standard for 
the use of staff deposition authority, and that even further 
protections for the Minority could be included.
    We are encouraged by the inclusion of section 2 to this 
resolution. That section requires the Chairman of the Committee 
on Education and Labor to report back to the Committee on Rules 
on his use of the authority granted by the resolution. This 
provision will enable us to evaluate the use of staff 
deposition authority in this case, and have a benchmark to 
compare for future requests.
    However, we are concerned that--outside of the context of 
judicial impeachment--the Committee on Education and Labor is 
the only committee to request and receive this authority under 
the current Majority. Other committees are able to maintain 
robust oversight and investigations without the use of staff 
deposition authority. For instance, the Committee on Energy and 
Commerce was able to pursue its recent investigation into the 
performance of Toyota and the National Highway Traffic Safety 
Administration without the use of this authority. Similarly, 
the Financial Services Committee also conducted its 
investigations into the collapse of the financial markets with 
the regular authority granted to standing committees. Frankly, 
we are unsure why the Committee on Education and Labor 
continues to request this authority when other committees 
appear to be able to pursue vigorous and thorough 
investigations without it.
    With that said, we will not oppose the granting of staff 
deposition authority in this instance. This resolution is 
narrowly tailored, and the rules of the Committee on Education 
provide a modicum of protection for both deponents and the 
Minority.

                                   David Dreier.
                                   Lincoln Diaz-Balart.
                                   Pete Sessions.
                                   Virginia Foxx.

                                APPENDIX

    Text of Education and Labor Committee rule adopted on 
January 21, 2009:

                     Rule 10. Deposition Procedure

    (a) In accordance with the Committee receiving 
authorization by the House of Representatives for the taking of 
depositions in furtherance of a Committee investigation, the 
Chair, upon consultation with the ranking minority member, may 
order the taking of depositions pursuant to notice or subpoena 
as contemplated by this rule.
    (b) The Chair or majority staff shall consult with the 
ranking minority member or minority staff no less than three 
business days before any notice or subpoena for a deposition is 
issued. After such consultation, all members shall receive 
written notice that a notice or subpoena for a deposition will 
be issued.
    (c) A notice or subpoena issued under this rule shall 
specify the date, time, and place of the deposition and the 
method or methods by which the deposition will be recorded. 
Prior to testifying, a deponent shall be provided with a copy 
of the Committee's rules, the House Resolution authorizing the 
taking of the deposition, and Rule X of the Rules of the House 
of Representatives.
    (d)(1) A deposition shall be conducted by one or more 
members or Committee counsel as designated by the Chair or 
ranking minority member.
    (2) A deposition shall be taken under oath or affirmation 
administered by a member or a person otherwise authorized to 
administer oaths and affirmations.
    (e) A deponent may be accompanied at a deposition by 
counsel to advise the deponent of the deponent's rights. Only 
members and Committee counsel, however, may examine the 
deponent. No one may be present at a deposition other than 
members, Committee staff designated by the Chair or ranking 
minority member, such individuals as may be required to 
administer the oath or affirmation and transcribe or record the 
proceedings, the deponent, and the deponent's counsel 
(including personal counsel and counsel for the entity 
employing the deponent if the scope of the deposition is 
expected to cover actions taken as part of the deponent's 
employment). Observers or counsel for other persons or entities 
may not attend.
    (f)(1) Unless the majority, minority, and deponent agree 
otherwise, questions in a deposition shall be propounded in 
rounds, alternating between the majority and minority. A single 
round shall not exceed 60 minutes per side, unless the members 
or counsel conducting the deposition agree to a different 
length of questioning. In each round, a member or Committee 
counsel designated by the Chair shall ask questions first, and 
the member or Committee counsel designated by the ranking 
minority member shall ask questions second.
    (2) Any objection made during a deposition must be stated 
concisely and in a non-argumentative and non-suggestive manner. 
Deponent may refuse to answer a question only to preserve a 
privilege. When the deponent has objected and refused to answer 
a question to preserve a privilege, the Chair may rule on any 
such objection after the deposition has adjourned. If the Chair 
overrules any such objection and thereby orders a deponent to 
answer any question to which a privilege objection was lodged, 
such ruling shall be filed with the clerk of the Committee and 
shall be provided to members and the deponent no less than 
three days before the ruling is enforced at a reconvened 
deposition. If a member of the Committee appeals in writing the 
ruling of the Chair, the appeal shall be preserved for 
Committee consideration. A deponent who refuses to answer a 
question after being directed to answer by the Chair in writing 
may be subject to sanction, except that no sanctions may be 
imposed if the ruling of the Chair is reversed on appeal. In 
all cases, when deposition testimony for which an objection has 
been made is offered for admission in evidence before the 
Committee, all properly lodged objections then made shall be 
timely and shall be considered by the Committee prior to 
admission in evidence before the Committee.
    (g) Deposition testimony shall be transcribed by 
stenographic means and may also be video recorded. The clerk of 
the Committee shall receive the transcript and any video 
recording and promptly forward such to minority staff at the 
same time the clerk distributes such to other majority staff.
    (h) The individual administering the oath shall certify on 
the transcript that the deponent was duly sworn. The 
transcriber shall certify that the transcript is a true, 
verbatim record of the testimony, and the transcript and any 
exhibits shall be filed, as shall any video recording, with the 
clerk of the Committee. In no case shall any video recording be 
considered the official transcript of a deposition or otherwise 
supersede the certified written transcript.
    (i) After receiving the transcript, majority staff shall 
make available the transcript for review by the deponent or 
deponent's counsel. No later than ten business days thereafter, 
the deponent may submit suggested changes to the Chair. 
Committee majority staff may direct the clerk of the Committee 
to note any typographical errors, including any requested by 
the deponent or minority staff, via an errata sheet appended to 
the transcript. Any proposed substantive changes, 
modifications, clarifications, or amendments to the deposition 
testimony must be submitted by the deponent as an affidavit 
that includes the deponent's reasons therefore. Any substantive 
changes, modifications, clarifications, or amendments shall be 
included as an appendix to the transcript, a copy of which 
shall be promptly forwarded to minority staff.
    (j) The Chair and ranking minority member shall consult 
regarding the release of a deposition transcript or electronic 
recordings. If either objects in writing to a proposed release 
of a deposition transcript or electronic recording or a portion 
thereof, the matter shall be promptly referred to the Committee 
for resolution.

                                  
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