II 

112TH CONGRESS 

1ST SESSION S. 153 

To improve compliance with mine and occupational safety and health laws, 

empower workers to raise safety concerns, prevent future mine and 

other workplace tragedies, establish rights of families of victims of workplace accidents, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 25 (legislative day, JANUARY 5), 2011 

Mr. ROCKEFELLER (for himself, Mr. HARKIN, Mrs. MURRAY, and Mr. 

MANCHIN) 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 and occupational safety 

and health laws, empower workers to raise safety concerns, prevent future mine and other workplace tragedies, establish rights of families of victims of workplace 

accidents, and for other purposes. 

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 and Workplace Safety and Health 

6 Act of 2011’’. 

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

2 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. References. 

TITLE I—ADDITIONAL INSPECTION AND INVESTIGATION 

AUTHORITY 

Sec. 101. Independent accident investigations. 

Sec. 102. Subpoena authority and miner rights during inspections and investigations. 

Sec. 103. Designation of miner representative. 

Sec. 104. Additional amendments relating to inspections, investigations, and 

recordkeeping. 

TITLE II—ENHANCED ENFORCEMENT AUTHORITY 

Sec. 201. Significant and substantial violations. 

Sec. 202. A pattern of recurring noncompliance or accidents. 

Sec. 203. Injunctive authority. 

Sec. 204. Revocation of approval of plans. 

Sec. 205. Challenging a decision to approve, modify, or revoke a coal or other 

mine plan. 

TITLE III—PENALTIES 

Sec. 301. Civil penalties. 

Sec. 302. Civil and criminal liability of officers, directors, and agents. 

Sec. 303. Criminal penalties. 

Sec. 304. Commission review of penalty assessments. 

Sec. 305. Delinquent payments and prejudgment interest. 

TITLE IV—WORKER RIGHTS AND PROTECTIONS 

Sec. 401. Protection from retaliation. 

Sec. 402. Protection from loss of pay. 

TITLE V—MODERNIZING HEALTH AND SAFETY STANDARDS 

Sec. 501. Pre-shift review of mine conditions. 

Sec. 502. Rock dust standards. 

Sec. 503. Atmospheric monitoring systems. 

Sec. 504. Technology related to respirable dust. 

Sec. 505. Refresher training on miner rights and responsibilities. 

Sec. 506. Authority to mandate additional training. 

Sec. 507. Certification of personnel. 

TITLE VI—ADDITIONAL MINE SAFETY PROVISIONS 

Sec. 601. Definitions. 

Sec. 602. Assistance to States. 

Sec. 603. Black lung medical reports. 

Sec. 604. Study on workforce needs. 

Sec. 605. Mine Safety and Health Administration strategic planning. 

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TITLE VII—AMENDMENTS TO THE OCCUPATIONAL SAFETY AND 

HEALTH ACT 

Sec. 701. Enhanced protections from retaliation. 

Sec. 702. Victims’ rights. 

Sec. 703. Correction of serious, willful, or repeated violations pending contest 

and procedures for a stay. 

Sec. 704. Conforming amendments. 

Sec. 705. Civil penalties. 

Sec. 706. Criminal penalties. 

Sec. 707. Penalties. 

Sec. 708. Effective date. 

1 SEC. 2. REFERENCES. 

2 Except in title VII and as otherwise expressly pro3 vided, whenever in this Act an amendment is expressed 

4 as an amendment to a section or other provision, the ref5 erence shall be considered to be made to a section or other 

6 provision of the Federal Mine Safety and Health Act of 

7 1977 (30 U.S.C. 801 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 by striking ‘‘(b) For the purpose’’ and 

14 inserting the following: 

15 ‘‘(b) ACCIDENT INVESTIGATIONS.— 

16 ‘‘(1) IN GENERAL.—For all accident investiga17 tions under this Act, the Secretary shall— 

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

19 ‘‘(B) determine whether there were viola20 tions of law, mandatory health and safety 

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1 standards, or other requirements, and if such 

2 violations are found, issue citations and pen3 alties, and in cases involving possible criminal 

4 actions, refer such matters to the Attorney 

5 General; 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 submstockstill on DSKH9S0YB1PROD with BILLS

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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. 

22 ‘‘(iv) COMPOSITION.—The Secretary 

23 of Health and Human Services shall ap24 point as members of the Panel— 

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1 ‘‘(I) 1 operator of a mine or indi2 vidual representing mine operators, 

3 and 

4 ‘‘(II) 1 member of a labor orga5 nization or other representative of 

6 miners, 

7 and may not appoint more than 1 of either 

8 such individuals as members of the Panel. 

9 ‘‘(v) STAFF AND EXPENSES.—The Di10 rector of NIOSH shall designate NIOSH 

11 staff to facilitate the work of the Panel. 

12 The Director may accept as staff personnel 

13 on detail from other Federal agencies or 

14 re-employ annuitants. The detail of per15 sonnel under this paragraph may be on a 

16 non-reimbursable basis, and such detail 

17 shall be without interruption or loss of civil 

18 service status or privilege. The Director of 

19 NIOSH shall have the authority to procure 

20 on behalf of the Panel such materials, sup21 plies or services, including technical ex22 perts, as requested in writing by a majority 

23 of the Panel. 

24 ‘‘(vi) COMPENSATION AND TRAVEL.— 

25 All members of the Panel who are officers 

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1 or employees of the United States shall 

2 serve without compensation in addition to 

3 that received for their services as officers 

4 or employees of the United States. Each 

5 Panel member who is not an officer or em6 ployee of the United States shall be com7 pensated at a rate equal to the daily equiv8 alent of the annual rate of basic pay pre9 scribed for level IV of the Executive Sched10 ule under section 5315 of title 5, United 

11 States Code, for each day (including travel 

12 time) during which such member is en13 gaged in the performance of duties of the 

14 Panel. The members of the Panel shall be 

15 allowed travel expenses, including per diem 

16 in lieu of subsistence, at rates authorized 

17 for employees of agencies under subchapter 

18 1 of chapter 57 of title 5, United States 

19 Code, while away from their homes or reg20 ular places of business in the performance 

21 of services for the Panel. 

22 ‘‘(C) DUTIES.—The Panel shall— 

23 ‘‘(i) assess and identify any factors 

24 that caused the accident, including defi25 ciencies in safety management systems, 

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1 regulations, enforcement, industry prac2 tices or guidelines, or organizational fail3 ures; 

4 ‘‘(ii) identify and evaluate any con5 tributing actions or inactions of— 

6 ‘‘(I) the operator; 

7 ‘‘(II) any contractors or other 

8 persons engaged in mining-related 

9 functions at the site; 

10 ‘‘(III) any State agency with 

11 oversight responsibilities; 

12 ‘‘(IV) any agency or office within 

13 the Department of Labor; or 

14 ‘‘(V) any other person or entity 

15 (including equipment manufacturers); 

16 ‘‘(iii) review the determinations and 

17 recommendations by the Secretary under 

18 paragraph (1); 

19 ‘‘(iv) prepare a report that— 

20 ‘‘(I) includes the findings regard21 ing the causal factors described in 

22 clauses (i) and (ii); 

23 ‘‘(II) identifies any strengths and 

24 weaknesses in the Secretary’s inves25 tigation; and 

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1 ‘‘(III) includes recommendations, 

2 including interim recommendations 

3 where appropriate, to industry, labor 

4 organizations, State and Federal 

5 agencies, or Congress, regarding pol6 icy, regulatory, enforcement, adminis7 trative, or other changes, which in the 

8 judgment of the Panel, would prevent 

9 a recurrence at other mines; and 

10 ‘‘(v) publish such findings and rec11 ommendations (excluding any portions 

12 which the Attorney General requests that 

13 the Secretary withhold in relation to a 

14 criminal referral) and hold public meetings 

15 to inform the mining community and fami16 lies of affected miners of the Panel’s find17 ings and recommendations. 

18 ‘‘(D) HEARINGS; APPLICABILITY OF CER19 TAIN FEDERAL LAW.—The Panel shall have the 

20 authority to conduct public hearings or meet21 ings, but shall not be subject to the Federal Ad22 visory Committee Act. All public hearings of the 

23 Panel shall be subject to the requirements 

24 under section 552b of title 5, United States 

25 Code. 

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1 ‘‘(E) MEMORANDUM OF UNDER2 STANDING.—Not later than 90 days after the 

3 date of enactment of the Robert C. Byrd Mine 

4 and Workplace Safety and Health Act of 2011, 

5 the Secretary of Labor and the Secretary of 

6 Health and Human Services shall conclude and 

7 publically issue a memorandum of under8 standing that— 

9 ‘‘(i) outlines administrative arrange10 ments which will facilitate a coordination 

11 of efforts between the Secretary of Labor 

12 and the Panel, ensures that the Secretary’s 

13 investigation under paragraph (1) is not 

14 delayed or otherwise compromised by the 

15 activities of the Panel, and establishes a 

16 process to resolve any conflicts between 

17 such investigations; 

18 ‘‘(ii) ensures that Panel members or 

19 staff will be able to participate in inves20 tigation activities (such as mine inspections 

21 and interviews) related to the Secretary of 

22 Labor’s investigation and will have full ac23 cess to documents that are assembled or 

24 produced in such investigation, and en25 sures that the Secretary of Labor will 

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1 make all of the authority available to such 

2 Secretary under this section, including sub3 poena authority, to obtain information and 

4 witnesses which may be requested by such 

5 Panel; and 

6 ‘‘(iii) establishes such other arrange7 ments as are necessary to implement this 

8 paragraph. 

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

10 days after the date of enactment of the Robert 

11 C. Byrd Mine and Workplace Safety and 

12 Health Act of 2011, the Secretary of Health 

13 and Human Services shall establish procedures 

14 to ensure the consistency and effectiveness of 

15 Panel investigations. In establishing such proce16 dures, such Secretary shall consult with inde17 pendent safety investigation agencies, sectors of 

18 the mining industry, representatives of miners, 

19 families of miners involved in fatal accidents, 

20 State mine safety agencies, and mine rescue or21 ganizations. Such procedures shall include— 

22 ‘‘(i) authority for the Panel to use evi23 dence, samples, interviews, data, analyses, 

24 findings, or other information gathered by 

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1 the Secretary of Labor, as the Panel deter2 mines valid; 

3 ‘‘(ii) provisions to ensure confiden4 tiality if requested by any witness, to the 

5 extent permitted by law, and prevent con6 flicts of interest in witness representation; 

7 and 

8 ‘‘(iii) provisions for preservation of 

9 public access to the Panel’s records 

10 through the Secretary of Health and 

11 Human Services. 

12 ‘‘(G) AUTHORIZATION OF APPROPRIA13 TIONS.—There is authorized to be appropriated 

14 to carry out this subsection such sums as may 

15 be necessary. 

16 ‘‘(3) POWERS AND PROCESSES.—For the pur17 pose’’. 

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

19 (30 U.S.C. 958(a)) is amended by inserting after ‘‘501,’’ 

20 the following: ‘‘the status of implementation of rec21 ommendations from each independent investigation panel 

22 under section 103(b) received in the preceding 5 years.’’. 

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1 SEC. 102. SUBPOENA AUTHORITY AND MINER RIGHTS DUR2 ING INSPECTIONS AND INVESTIGATIONS. 

3 Section 103(b) (as amended by section 101) (30 

4 U.S.C. 813(b)) is further amended by adding at the end 

5 the following: 

6 ‘‘(4) ADDITIONAL POWERS.—For the purpose 

7 of enabling the Secretary to perform any of the 

8 functions under this Act, the Secretary or the Sec9 retary’s designee, may sign and issue subpoenas for 

10 the attendance and testimony of witnesses and the 

11 production of information, including all relevant 

12 data, papers, books, documents, and items of phys13 ical evidence, and administer oaths. Witnesses sum14 moned shall be paid the same fees that are paid wit15 nesses in the courts of the United States. In car16 rying out inspections and investigations under this 

17 subsection, authorized representatives of the Sec18 retary and attorneys representing the Secretary are 

19 authorized to question any individual privately. 

20 Under this section, any individual who is willing to 

21 speak with or provide a statement to such author22 ized representatives or attorneys representing the 

23 Secretary may do so without the presence, involve24 ment, or knowledge of the operator or the operator’s 

25 agents or attorneys. The Secretary shall keep the 

26 identity of an individual providing such a statement 

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1 confidential to the extent permitted by law. Nothing 

2 in this paragraph prevents any individual from being 

3 represented by that individual’s personal attorney.’’. 

4 SEC. 103. DESIGNATION OF MINER REPRESENTATIVE. 

5 Section 103(f) (30 U.S.C. 813(f)) is amended by in6 serting before the last sentence the following: ‘‘If any 

7 miner is entrapped or otherwise prevented as the result 

8 of an accident in such mine from designating such a rep9 resentative directly, such miner’s closest relative may act 

10 on behalf of such miner in designating such a representa11 tive. If any miner is not currently working in such mine 

12 as the result of an accident in such mine, but would be 

13 currently working in such mine but for such accident, such 

14 miner may designate such a representative.’’. 

15 SEC. 104. ADDITIONAL AMENDMENTS RELATING TO IN16 SPECTIONS, INVESTIGATIONS, AND RECORD17 KEEPING. 

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

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

20 sentence the following: ‘‘Such inspections shall be con21 ducted during the various shifts and days of the week dur22 ing which miners are normally present in the mine to en23 sure that the protections of this Act are afforded to all 

24 miners working all shifts. If an inspection of a working 

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1 nized mining unit is producing, or customarily produces, 

2 coal on such section, then such inspection shall be con3 ducted while such unit is producing coal at a rate that 

4 is reasonably consistent with the average rate of produc5 tion at the mine during the previous quarter.’’. 

6 (b) CONFLICT OF INTEREST IN THE REPRESENTA7 TION OF MINERS.—Section 103(a) (30 U.S.C. 813(a)) is 

8 further amended by adding at the end the following: ‘‘Dur9 ing inspections and investigations under this section, and 

10 during any litigation under this Act, no attorney shall rep11 resent or purport to represent both the operator of a coal 

12 or other mine and any other individual, unless such indi13 vidual has knowingly and voluntarily waived all actual and 

14 reasonably foreseeable conflicts of interest resulting from 

15 such representation. The Secretary is authorized to take 

16 such actions as the Secretary considers appropriate to as17 certain whether such individual has knowingly and volun18 tarily waived all such conflicts of interest. If the Secretary 

19 finds that such an individual cannot be represented ade20 quately by such an attorney due to such conflicts of inter21 est, the Secretary may petition the appropriate United 

22 States District Court which shall have jurisdiction to dis23 qualify such attorney as counsel to such individual in the 

24 matter. The Secretary may make such a motion as part 

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1 of an ongoing related civil action or as a miscellaneous 

2 action.’’. 

3 (c) INJURY AND ILLNESS REPORTING.—Section 

4 103(d) (30 U.S.C. 813(d)) is amended by striking the last 

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

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

7 include man-hours worked and occupational injuries and 

8 illnesses, and shall be maintained separately for each mine 

9 and be reported at a frequency determined by the Sec10 retary, but at least annually. Operators shall be respon11 sible for reporting on all miners working at such mine re12 gardless of their employer, except that independent con13 tractors (within the meaning of section 3(d)) shall only 

14 be responsible for reporting on miners in their employ or 

15 under their direction or authority.’’. 

16 (d) ORDERS FOLLOWING AN ACCIDENT.—Section 

17 103(k) (30 U.S.C. 813(k)) is amended by striking ‘‘, when 

18 present,’’. 

19 (e) ELECTRONIC DATABASE.—Section 103 (30 

20 U.S.C. 813) is amended by adding at the end the fol21 lowing: 

22 ‘‘(l) The Secretary shall establish and maintain a 

23 publicly available electronic database containing current 

24 and historical data on the safety records of each coal or 

25 other mine. Such database shall be user-friendly and 

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1 searchable, and shall have the ability to provide aggregate 

2 data for each mine, each operator, and each controller of 

3 a mine and the ability to compare safety data between 

4 mines, operators, and controllers.’’. 

5 (f) OUTSIDE EXPERTS IN INVESTIGATIONS.—Section 

6 112 (30 U.S.C. 822) is amended— 

7 (1) by striking ‘‘Except as provided’’ and in8 serting the following: 

9 ‘‘(a) CIVIL LITIGATION REPRESENTATION.—Except 

10 as provided’’; and 

11 (2) by adding at the end the following: 

12 ‘‘(b) MINING EXPERTS IN INVESTIGATIONS.—The 

13 Attorney General shall designate 1 or more full-time em14 ployees with expertise in the mining industry to coordinate 

15 with the Department of Labor and assist United States 

16 attorneys in the investigation and prosecution of criminal 

17 violations under this Act.’’. 

18 TITLE II—ENHANCED 

19 ENFORCEMENT AUTHORITY 

20 SEC. 201. SIGNIFICANT AND SUBSTANTIAL VIOLATIONS. 

21 Section 104(d)(1) (30 U.S.C. 814(d)(1)) is amend22 ed— 

23 (1) in the first sentence— 

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

25 safety standard’’ and inserting ‘‘any provision 

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1 of this Act, including any mandatory health or 

2 safety standard or regulation promulgated 

3 under this Act’’; and 

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

5 safety standards’’ and inserting ‘‘such provi6 sions, regulations, or mandatory health or safe7 ty standards’’; 

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

9 mandatory health or safety standard’’ and inserting 

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

11 health or safety standard or regulation promulgated 

12 under this Act,’’; and 

13 (3) by inserting after the first sentence the fol14 lowing: ‘‘For purposes of this Act, a violation of a 

15 provision of this Act, including any mandatory 

16 health or safety standard or regulation promulgated 

17 under this Act, is of such nature as could signifi18 cantly and substantially contribute to the cause and 

19 effect of a safety or health hazard if there is a rea20 sonable possibility that such violation could result in 

21 injury, illness, or death.’’. 

22 SEC. 202. A PATTERN OF RECURRING NONCOMPLIANCE OR 

23 ACCIDENTS. 

24 Section 104(e) (30 U.S.C. 814(e)) is amended to read 

25 as follows: 

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1 ‘‘(e) PATTERN OF RECURRING NONCOMPLIANCE OR

2 ACCIDENTS.— 

3 ‘‘(1) PATTERN STATUS.— 

4 ‘‘(A) IN GENERAL.—For purposes of this 

5 subsection, an operator of a coal or other mine 

6 shall be in pattern status if the operator has, 

7 as determined based on the regulations promul8 gated under paragraph (8)— 

9 ‘‘(i) a pattern of— 

10 ‘‘(I) citations for significant and 

11 substantial violations; 

12 ‘‘(II) citations and withdrawal or13 ders issued for unwarrantable failure 

14 to comply with mandatory health and 

15 safety standards under section 104(d); 

16 ‘‘(III) citations for flagrant viola17 tions within the meaning of section 

18 110(b); 

19 ‘‘(IV) withdrawal orders issued 

20 under any other section of this Act; or 

21 ‘‘(V) accidents, injuries, or ill22 nesses; or 

23 ‘‘(ii) a pattern consisting of any com24 bination of citations, orders, accidents, inmstockstill on DSKH9S0YB1PROD with BILLS

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1 juries, or illnesses described in subclauses 

2 (I) through (V). 

3 ‘‘(B) MITIGATING CIRCUMSTANCES.—Not4 withstanding subparagraph (A), if the Sec5 retary, after conducting an assessment of a coal 

6 or other mine that otherwise qualifies for pat7 tern status, certifies that there are mitigating 

8 circumstances wherein the operator has elimi9 nated any elevated risk to the health or safety 

10 of miners and has taken sufficient measures to 

11 ensure such elevated risk will not recur, the 

12 Secretary may deem such mine to not be in pat13 tern status under this subsection. The Sec14 retary shall issue any such certification of such 

15 mitigating circumstances that would preclude 

16 the placement of a mine in pattern status as a 

17 written finding, which shall, not later than 10 

18 days after the certification is made, be— 

19 ‘‘(i) published in the Federal Register; 

20 and 

21 ‘‘(ii) transmitted to the Committee on 

22 Education and the Workforce of the House 

23 of Representatives and the Committee on 

24 Health, Education, Labor, and Pensions of 

25 the Senate. 

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1 ‘‘(2) ACTIONS FOLLOWING PLACEMENT OF

2 MINE IN PATTERN STATUS.—For any coal or other 

3 mine that is in pattern status, the Secretary shall— 

4 ‘‘(A) notify the operator of such mine that 

5 the mine is being placed in pattern status; 

6 ‘‘(B) issue an order requiring such oper7 ator to cause all persons to be withdrawn from 

8 such mine, except those persons referred to in 

9 subsection (c) or authorized by an order of the 

10 Secretary issued under this subsection; 

11 ‘‘(C) issue a remediation order described in 

12 paragraph (3) to such operator; and 

13 ‘‘(D) require that the number of regular 

14 inspections of such mine required under section 

15 103 be increased to 8 per year for an under16 ground mine and 4 per year for a surface mine 

17 while the mine is in pattern status. 

18 Notice advising operators that they face potential 

19 placement in pattern status shall not be a require20 ment for issuing a withdrawal order to operators 

21 under this subsection. 

22 ‘‘(3) REMEDIATION ORDER.— 

23 ‘‘(A) IN GENERAL.—A remediation order 

24 issued to an operator under paragraph (2)(C) 

25 may require the operator to carry out one or 

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1 more of the following requirements, pursuant to 

2 a timetable for commencing and completing 

3 such actions or as a condition of miners reen4 tering the mine: 

5 ‘‘(i) Provide specified training, includ6 ing training not otherwise required under 

7 this Act. 

8 ‘‘(ii) Institute and implement an effec9 tive health and safety management pro10 gram approved by the Secretary, includ11 ing— 

12 ‘‘(I) the employment of safety 

13 professionals, certified persons, and 

14 adequate numbers of personnel for the 

15 mine, as may be required by the Sec16 retary; 

17 ‘‘(II) specific inspection, record18 keeping, reporting and other require19 ments for the mine as the Secretary 

20 may establish; and 

21 ‘‘(III) other requirements to en22 sure compliance and to protect the 

23 health and safety of miners or prevent 

24 accidents or injuries as the Secretary 

25 may determine are necessary. 

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1 ‘‘(iii) Facilitate any effort by the Sec2 retary to communicate directly with miners 

3 employed at the mine outside the presence 

4 of the mine operators or its agents, for the 

5 purpose of obtaining information about 

6 mine conditions, health and safety prac7 tices, and advising miners of their rights 

8 under this Act. 

9 ‘‘(B) MODIFICATION OF AND FAILURE TO

10 COMPLY WITH REMEDIATION ORDER.—The Sec11 retary may modify the remediation order, as 

12 necessary, to protect the health and safety of 

13 miners. If the mine operator fails to fully com14 ply with the remediation order during the time 

15 a mine is in pattern status, the Secretary shall 

16 reinstate the withdrawal order under paragraph 

17 (2)(B). 

18 ‘‘(C) EXTENSION OF DEADLINES.—An ex19 tension of a deadline under the remediation 

20 order may be granted on a temporary basis and 

21 only upon a showing that the operator took all 

22 feasible measures to comply with the order and 

23 only to the extent that the operator’s failure to 

24 comply is beyond the control of the operator. 

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1 ‘‘(4) CONDITIONS FOR LIFTING WITHDRAWAL

2 ORDER.—A withdrawal order issued under para3 graph (2)(B) shall not be lifted until the Secretary 

4 verifies that— 

5 ‘‘(A) any and all violations or other condi6 tions in the mine identified in the remediation 

7 order have been or are being fully abated or 

8 corrected as outlined in the remediation order; 

9 and 

10 ‘‘(B) the operator has completed any other 

11 actions under the remediation order that are re12 quired for reopening the mine. 

13 ‘‘(5) PERFORMANCE EVALUATION.— 

14 ‘‘(A) PERFORMANCE BENCHMARKS.—The 

15 Secretary shall evaluate the performance of 

16 each operator whose mine is in pattern status 

17 every 90 days during which the mine is pro18 ducing and determine if, for such 90-day pe19 riod— 

20 ‘‘(i) the operator’s rate of citations for 

21 significant and substantial violations— 

22 ‘‘(I) are, on average, in the top 

23 performing 35th percentile of such 

24 rates, respectively, for all mines of 

25 similar size and type; or 

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1 ‘‘(II) have been reduced by 70 

2 percent since such mine was placed on 

3 pattern status; 

4 ‘‘(ii) the operator’s accident and in5 jury rates are, on average, in the top per6 forming 35th percentile of such rates, re7 spectively, for all mines of similar size and 

8 type; and 

9 ‘‘(iii) no citation or withdrawal order 

10 for a violation under section 104(d), no 

11 withdrawal order for imminent danger 

12 under section 107 arising from a signifi13 cant and substantial violation, and no fla14 grant violations within the meaning of sec15 tion 110(b), were issued for such mine. 

16 ‘‘(B) REISSUANCE OF WITHDRAWAL OR17 DERS.—If an operator being evaluated fails to 

18 achieve the performance benchmarks described 

19 in subparagraph (A), the Secretary may reissue 

20 a withdrawal order under paragraph (2)(B) to 

21 remedy any recurring conditions that led to pat22 tern status under this subsection, and may 

23 modify the remediation order, as necessary, to 

24 protect the health and safety of miners. 

25 ‘‘(6) TERMINATION OF PATTERN STATUS.— 

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1 ‘‘(A) PERFORMANCE BENCHMARKS.—The 

2 Secretary shall remove an operator of a coal or 

3 other mine from pattern status if, for a 1-year 

4 period during which the mine is producing— 

5 ‘‘(i) the operator’s rate of citations for 

6 significant and substantial violations— 

7 ‘‘(I) are, on average, in the top 

8 performing 25th percentile of such 

9 rates, respectively, for all mines of 

10 similar size and type; or 

11 ‘‘(II) have been reduced by 80 

12 percent since such mine was placed on 

13 pattern status; 

14 ‘‘(ii) the operator’s accident and in15 jury rates are, on average, in the top per16 forming 25th percentile of such rates, re17 spectively, for all mines of similar size and 

18 type; and 

19 ‘‘(iii) no citation or withdrawal orders 

20 for violations under section 104(d), no 

21 withdrawal orders for imminent danger 

22 under section 107 arising from a signifi23 cant and substantial violation, and no fla24 grant violations within the meaning of sec25 tion 110(b), were issued for such mine. 

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1 ‘‘(B) CONTINUATION OF PATTERN STA2 TUS.—Should the mine operator fail to meet 

3 the performance benchmarks described in sub4 paragraph (A), the Secretary shall extend the 

5 mine’s placement in pattern status until such 

6 benchmarks are achieved. 

7 ‘‘(7) EXPEDITED REVIEW.—If any order under 

8 this subsection is contested, the review of such order 

9 shall be conducted on an expedited basis, in accord10 ance with section 105(d). 

11 ‘‘(8) REGULATIONS; INFORMATION ON PER12 FORMANCE.— 

13 ‘‘(A) IN GENERAL.—Not later than 120 

14 days after the date of enactment of the Robert 

15 C. Byrd Mine and Workplace Safety and 

16 Health Act of 2011, the Secretary shall issue 

17 interim final regulations that shall define— 

18 ‘‘(i) the threshold criteria to trigger 

19 pattern status under paragraph (1) and 

20 cause a withdrawal order to be issued or 

21 reissued; and 

22 ‘‘(ii) the performance benchmarks de23 scribed in paragraphs (5)(A) and (6)(A). 

24 ‘‘(B) THRESHOLD CRITERIA.—In estab25 lishing threshold criteria to trigger pattern stamstockstill on DSKH9S0YB1PROD with BILLS

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1 tus for mines with significantly poor compliance 

2 that contributes to unsafe or unhealthy condi3 tions, the Secretary— 

4 ‘‘(i) shall consider frequency and rates 

5 of citations described in paragraph (1)(A) 

6 and rates of reportable accidents and inju7 ries within the preceding 180-day period; 

8 ‘‘(ii) may include factors such as mine 

9 type, production levels, number of miners, 

10 hours worked by miners, number of mecha11 nized mining units (or similar production 

12 characteristics), and the designation of a 

13 representative of miners at the mine; 

14 ‘‘(iii) may include the mine’s history 

15 of citations, violations, orders, and other 

16 enforcement actions, or rates of reportable 

17 accidents and injuries, over any period de18 termined relevant by the Secretary; 

19 ‘‘(iv) may assign weight to various 

20 types of citations, orders, accidents, inju21 ries, illnesses, or other factors; and 

22 ‘‘(v) may include other factors the 

23 Secretary may determine appropriate to 

24 protect the safety and health of miners. 

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1 ‘‘(C) FINAL REGULATION.—Not later than 

2 2 years after the date of enactment of the Rob3 ert C. Byrd Mine and Workplace Safety and 

4 Health Act of 2011, the Secretary shall promul5 gate final regulations implementing this para6 graph. 

7 ‘‘(D) GOVERNMENT ACCOUNTABILITY OF8 FICE STUDY.—Not later than 2 years after the 

9 promulgation of the final regulations under sub10 paragraph (C), the Comptroller General of the 

11 United States shall study the effectiveness of 

12 the threshold criteria established in this para13 graph and issue to the Committee on Health, 

14 Education, Labor, and Pensions of the Senate 

15 and to the Committee on Education and the 

16 Workforce of the House of Representative a re17 port on the results of the study. In conducting 

18 this study, the Comptroller General shall con19 sult with all appropriate stakeholders. 

20 ‘‘(9) PUBLIC DATABASE AND INFORMATION.— 

21 The Secretary shall establish and maintain a pub22 lically available electronic database containing the 

23 data used to determine pattern status for all coal or 

24 other mines. Such database shall be searchable, shall 

25 have the capacity to provide comparative data about 

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1 the health and safety at mines of similar sizes and 

2 types. The Secretary shall also make publicly avail3 able— 

4 ‘‘(A) a list of all mines the Secretary 

5 places in pattern status, updated not less fre6 quently than quarterly; and 

7 ‘‘(B) the metrics, including percentile in8 formation, used for the purposes of the per9 formance benchmarks and threshold criteria de10 scribed in paragraphs (5), (6), and (8). 

11 ‘‘(10) OPERATOR FEES FOR ADDITIONAL IN12 SPECTIONS.— 

13 ‘‘(A) ASSESSMENT AND COLLECTION.—Be14 ginning 120 days after the date of enactment of 

15 the Robert C. Byrd Mine and Workplace Safety 

16 and Health Act of 2011, the Secretary shall as17 sess and collect fees, in accordance with this 

18 paragraph, from each coal or other mine in pat19 tern status for the costs of additional inspec20 tions under this subsection. The Secretary shall 

21 issue, by rule, a schedule of fees to be assessed 

22 against coal or other mines of varying types 

23 and sizes, and shall collect and assess amounts 

24 under this paragraph based on the schedule. 

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1 ‘‘(B) MINES IN PATTERN STATUS INSPEC2 TION FUND.—There is established in the Treas3 ury of the United States a separate account for 

4 the deposit of fees collected under this para5 graph to be known as the Mines in Pattern Sta6 tus Inspection Fund. The Secretary shall de7 posit any fees collected pursuant to subpara8 graph (A) into the fund. 

9 ‘‘(C) USE.—Amounts in the Mines in Pat10 tern Status Inspection Fund shall be available 

11 to the Secretary, as provided in subparagraph 

12 (D), for making expenditures to carry out the 

13 additional inspections required under paragraph 

14 (2)(D). 

15 ‘‘(D) AUTHORIZATION OF APPROPRIA16 TIONS.—In addition to any other amounts ap17 propriated, there is authorized to be appro18 priated from the Mines in Pattern Status In19 spection Fund to the Assistant Secretary for 

20 Mine Safety and Health for each fiscal year in 

21 which fees are collected under subparagraph 

22 (A) an amount equal to the total amount col23 lected during the previous fiscal year from fees 

24 assessed pursuant to this paragraph. Such 

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1 amounts are authorized to remain available 

2 until expended. 

3 ‘‘(E) CREDITING AND AVAILABILITY OF

4 FEES.—Fees authorized and collected under 

5 this paragraph shall be available for obligation 

6 only to the extent and in the amount provided 

7 in advance in appropriations Acts.’’. 

8 SEC. 203. INJUNCTIVE AUTHORITY. 

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

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

11 and inserting ‘‘a course of conduct that in the judgment 

12 of the Secretary constitutes a continuing hazard to the 

13 health or safety of miners, including violations of this Act 

14 or of mandatory health and safety standards or regula15 tions under this Act.’’. 

16 SEC. 204. REVOCATION OF APPROVAL OF PLANS. 

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

18 (1) by redesignating subsection (d) as sub19 section (e); and 

20 (2) by inserting after subsection (c) the fol21 lowing: 

22 ‘‘(d) REVOCATION OF APPROVAL OF PLANS.— 

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

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

25 that was approved by the Secretary under this Act 

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1 is based on inaccurate information or that cir2 cumstances that existed when such plan was ap3 proved have materially changed and that continued 

4 operation of such mine under such plan constitutes 

5 a hazard to the safety or health of miners, the Sec6 retary shall revoke the approval of such program or 

7 plan. 

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

9 of the approval of a program or plan under sub10 section (a), the Secretary may immediately issue an 

11 order requiring the operator to cause all persons, ex12 cept those persons referred to in section 104(c), to 

13 be withdrawn from such mine, and to be prohibited 

14 from entering such mine, until the operator has sub15 mitted and the Secretary has approved a new plan.’’. 

16 SEC. 205. CHALLENGING A DECISION TO APPROVE, MOD17 IFY, OR REVOKE A COAL OR OTHER MINE 

18 PLAN. 

19 Section 105(e) (as redesignated by section 204(1)) 

20 (30 U.S.C. 815(e)) is amended by adding at the end the 

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

22 the Secretary’s decision to approve, modify, or revoke a 

23 coal or other mine plan under this Act, the Commission 

24 and the courts shall affirm the Secretary’s decision unless 

25 the challenging party establishes that such decision was 

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1 arbitrary, capricious, an abuse of discretion, or otherwise 

2 not in accordance with law.’’. 

3 TITLE III—PENALTIES 

4 SEC. 301. CIVIL PENALTIES. 

5 (a) MAXIMUM CIVIL PENALTIES.—Section 110(a)(1) 

6 (30 U.S.C. 820(a)(1)) is amended— 

7 (1) by inserting ‘‘including any regulation pro8 mulgated under this Act,’’ after ‘‘this Act,’’; and 

9 (2) by striking ‘‘violation.’’ and inserting ‘‘viola10 tion, except that, in the case of a significant and 

11 substantial violation, the penalty shall be not more 

12 than $150,000 for each such violation.’’. 

13 (b) INCREASED CIVIL PENALTIES DURING PATTERN

14 STATUS.—Section 110(b) (30 U.S.C. 820(b)) is amended 

15 by adding at the end the following: 

16 ‘‘(3) Notwithstanding any other provision of this Act, 

17 an operator of a coal or other mine that is in pattern sta18 tus under section 104(e) and that fails to meet the per19 formance benchmarks set forth by the Secretary under 

20 section 104(e)(5)(A) during any performance review of the 

21 mine following the first performance review shall be as22 sessed an increased civil penalty for any violation of this 

23 Act, including any mandatory health or safety standard 

24 or regulation promulgated under this Act. Such increased 

25 penalty shall be twice the amount that would otherwise 

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

2 regulations promulgated under this Act, subject to the 

3 maximum civil penalty established for the violation under 

4 this Act. This paragraph shall apply to violations at such 

5 mine that occur during the period beginning after the 

6 failed performance review following the first performance 

7 review, and ending when the Secretary determines at a 

8 subsequent performance review that the mine meets the 

9 performance benchmarks.’’. 

10 (c) CIVIL PENALTY FOR RETALIATION.—Section 

11 110(a) (30 U.S.C. 820(a)) is further amended— 

12 (1) by redesignating paragraph (4) as para13 graph (5); and 

14 (2) by inserting after paragraph (3) the fol15 lowing: 

16 ‘‘(4) If any person violates section 105(c), the Sec17 retary shall propose, and the Commission shall assess, a 

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

19 $100,000 for the first occurrence of such violation, and 

20 not less than $20,000 or more than $200,000 for any sub21 sequent violation, during any 3-year period.’’. 

22 SEC. 302. CIVIL AND CRIMINAL LIABILITY OF OFFICERS, DI23 RECTORS, AND AGENTS. 

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

25 as follows: 

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

2 DIRECTORS, AND AGENTS.—Whenever an operator vio3 lates a provision of this Act, including any mandatory 

4 health or safety standard or regulation promulgated under 

5 this Act, or knowingly violates or fails or refuses to comply 

6 with any order issued under this Act or any order incor7 porated in a final decision issued under this Act, any di8 rector, officer, or agent of such operator who knowingly 

9 authorized, ordered, or carried out such violation, failure, 

10 or refusal, or any policy or practice that contributed to 

11 the occurrence of such violation, failure, or refusal, shall 

12 be subject to the same civil penalties, fines, and imprison13 ment that may be imposed upon a person under this sec14 tion.’’. 

15 SEC. 303. CRIMINAL PENALTIES. 

16 (a) INTENT REQUIREMENTS FOR CRIMINAL PEN17 ALTY STANDARDS.—Section 110(d) (30 U.S.C. 820(d)) is 

18 amended— 

19 (1) by striking ‘‘willfully’’ and inserting ‘‘know20 ingly’’; 

21 (2) by striking ‘‘$250,000, or by imprisonment 

22 for not more than one year’’ and inserting 

23 ‘‘$1,000,000, or by imprisonment for not more than 

24 5 years’’; and 

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1 (3) by striking ‘‘$500,000, or by imprisonment 

2 for not more than five years’’ and inserting 

3 ‘‘$2,000,000, or by imprisonment for not more than 

4 10 years’’. 

5 (b) CRIMINAL PENALTY FOR RETALIATION.—Section 

6 110(d) is further amended— 

7 (1) by inserting ‘‘(1)’’ before ‘‘Any operator’’; 

8 and 

9 (2) by adding at the end the following: 

10 ‘‘(2) Whoever knowingly takes any action that is di11 rectly or indirectly harmful to any person, including action 

12 that interferes with the lawful employment or livelihood 

13 of any person, because such person has provided an au14 thorized representative of the Secretary or another law en15 forcement officer with any information related to the exist16 ence of a health or safety violation or an unhealthful or 

17 unsafe condition, policy, or practice under this Act shall 

18 be fined under title 18, United States Code, imprisoned 

19 for not more than 10 years, or both.’’. 

20 (c) ADVANCE NOTICE OF INSPECTIONS.— 

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

22 820(e)) is amended— 

23 (A) by striking ‘‘Unless’’ and inserting 

24 ‘‘(1) Unless’’; and 

25 (B) by adding at the end the following: 

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1 ‘‘(2) Unless otherwise authorized by this Act, any op2 erator, agent or contractor of any operator, miner, inspec3 tor, employee of the Administration, or State mine inspec4 tor, that knowingly gives, causes to give, or attempts to 

5 give or cause to give advance notice of any inspection to 

6 be conducted under this Act shall be fined under title 18, 

7 United States Code, imprisoned for not more than 5 years, 

8 or both.’’. 

9 (2) POSTING OF ADVANCE NOTICE PEN10 ALTIES.—Section 109 (30 U.S.C. 819) is amended 

11 by adding at the end the following: 

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

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

14 bulletin board described in subsection (a) and in a con15 spicuous place near each staffed entrance onto the mine 

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

17 prescribed by the Secretary— 

18 ‘‘(1) that giving, causing to give, or attempting 

19 to give or cause to give advance notice of any inspec20 tion to be conducted under this Act is unlawful pur21 suant to section 110(e); and 

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

23 under such subsection.’’. 

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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 

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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 PAYMENTS 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 90 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 

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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 opmstockstill on DSKH9S0YB1PROD with BILLS

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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(n) of 

12 the Federal Mine Safety and Health Act of 1977 (as 

13 amended) (30 U.S.C. 820(n)) shall be calculated as 

14 beginning on the date of enactment of this Act in15 stead of on the date of the final order. 

16 TITLE IV—WORKER 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 or cause to be 

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1 discharged or 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, because— 

6 ‘‘(i) such miner or other employee, 

7 representative, or applicant for employ8 ment— 

9 ‘‘(I) has filed or made a com10 plaint, including a complaint notifying 

11 the operator or the operator’s agent, 

12 or the representative of the miners at 

13 the coal or other mine of an alleged 

14 danger or safety or health violation in 

15 a coal or other mine; 

16 ‘‘(II) instituted or caused to be 

17 instituted any proceeding under or re18 lated to this Act or has testified or is 

19 about to testify in any such pro20 ceeding or because of the exercise by 

21 such miner or other employee, rep22 resentative, or applicant for employ23 ment on behalf of him or herself or 

24 others of any right afforded by this 

25 Act; 

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

2 testify before Congress or any Federal 

3 or State proceeding related to safety 

4 or health in a coal or other mine; or 

5 ‘‘(IV) refused to violate any pro6 vision of this Act; or 

7 ‘‘(ii) such miner is the subject of med8 ical evaluations and potential transfer 

9 under a standard published pursuant to 

10 section 101. 

11 ‘‘(B) RETALIATION FOR REFUSAL TO PER12 FORM DUTIES.— 

13 ‘‘(i) IN GENERAL.—No person shall 

14 discharge or in any manner discriminate 

15 against a miner or other employee of an 

16 operator for refusing to perform the min17 er’s or other employee’s duties if the miner 

18 or other employee has a good-faith and 

19 reasonable belief that performing such du20 ties would pose a safety or health hazard 

21 to the miner or other employee or to any 

22 other miner or employee. 

23 ‘‘(ii) STANDARD.—For purposes of 

24 clause (i), the circumstances causing the 

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1 lief that performing such duties would pose 

2 a safety or health hazard shall be of such 

3 a nature that a reasonable person, under 

4 the circumstances confronting the miner or 

5 other employee, would conclude that there 

6 is such a hazard. In order to qualify for 

7 protection under this paragraph, the miner 

8 or other employee, when practicable, shall 

9 have communicated or attempted to com10 municate the safety or health concern to 

11 the operator and have not received from 

12 the operator a response reasonably cal13 culated to allay such concern. 

14 ‘‘(2) COMPLAINT.—Any miner or other em15 ployee or representative of miners or applicant for 

16 employment who believes that he or she has been 

17 discharged, disciplined, or otherwise discriminated 

18 against by any person in violation of paragraph (1) 

19 may file a complaint with the Secretary alleging 

20 such discrimination not later than 180 days after 

21 the later of the last date on which an alleged viola22 tion of paragraph (1) occurs or the date on which 

23 the miner or other employee or representative knows 

24 or should reasonably have known that such alleged 

25 violation occurred. 

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1 ‘‘(3) INVESTIGATION AND HEARING.— 

2 ‘‘(A) COMMENCEMENT OF INVESTIGATION

3 AND INITIAL DETERMINATION.—Upon receipt 

4 of such complaint, the Secretary shall forward 

5 a copy of the complaint to the respondent, and 

6 shall commence an investigation within 15 days 

7 of the Secretary’s receipt of the complaint, and, 

8 as soon as practicable after commencing such 

9 investigation, make the determination required 

10 under subparagraph (B) regarding the rein11 statement of the miner or other employee. 

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

13 finds that such complaint was not frivolously 

14 brought, the Commission, on an expedited basis 

15 upon application of the Secretary, shall order 

16 the immediate reinstatement of the miner or 

17 other employee until there has been a final 

18 Commission order disposing of the underlying 

19 complaint of the miner or other employee. If ei20 ther the Secretary or the miner or other em21 ployee pursues the underlying complaint, such 

22 reinstatement shall remain in effect until the 

23 Commission has disposed of such complaint on 

24 the merits, regardless of whether the Secretary 

25 pursues such complaint by filing a complaint 

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1 under subparagraph (D) or the miner or other 

2 employee pursues such complaint by filing an 

3 action under paragraph (4). If neither the Sec4 retary nor the miner or other employee pursues 

5 the underlying complaint within the periods 

6 specified in paragraph (4), such reinstatement 

7 shall remain in effect until such time as the 

8 Commission may, upon motion of the operator 

9 and after providing notice and an opportunity 

10 to be heard to the parties, vacate such com11 plaint for failure to prosecute. 

12 ‘‘(C) INVESTIGATION.—Such investigation 

13 shall include interviewing the complainant 

14 and— 

15 ‘‘(i) providing the respondent an op16 portunity to submit to the Secretary a 

17 written response to the complaint and to 

18 present statements from witnesses or pro19 vide evidence; and 

20 ‘‘(ii) providing the complainant an op21 portunity to receive any statements or evi22 dence provided to the Secretary and rebut 

23 any statements or evidence. 

24 ‘‘(D) ACTION BY THE SECRETARY.—If, 

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1 mines that the provisions of this subsection 

2 have been violated, the Secretary shall imme3 diately file a complaint with the Commission, 

4 with service upon the alleged violator and the 

5 miner or other employee or representative of 

6 miners alleging such discrimination or inter7 ference and propose an order granting appro8 priate relief. 

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

10 Commission shall afford an opportunity for a 

11 hearing (in accordance with section 554 of title 

12 5, United States Code, but without regard to 

13 subsection (a)(3) of such section) and there14 after shall issue an order, based upon findings 

15 of fact, affirming, modifying, or vacating the 

16 Secretary’s proposed order, or directing other 

17 appropriate relief. Such order shall become final 

18 30 days after its issuance. The complaining 

19 miner or other employee, representative, or ap20 plicant for employment may present additional 

21 evidence on his or her own behalf during any 

22 hearing held pursuant to this paragraph. 

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

24 authority in such proceedings to require a per25 son committing a violation of this subsection to 

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1 take such affirmative action to abate the viola2 tion and prescribe a remedy as the Commission 

3 considers appropriate, including— 

4 ‘‘(i) the rehiring or reinstatement of 

5 the miner or other employee with back pay 

6 and interest and without loss of position or 

7 seniority, and restoration of the terms, 

8 rights, conditions, and privileges associated 

9 with the complainant’s employment; 

10 ‘‘(ii) any other compensatory and con11 sequential damages sufficient to make the 

12 complainant whole, and exemplary dam13 ages where appropriate; and 

14 ‘‘(iii) expungement of all warnings, 

15 reprimands, or derogatory references that 

16 have been placed in paper or electronic 

17 records or databases of any type relating 

18 to the actions by the complainant that 

19 gave rise to the unfavorable personnel ac20 tion, and, at the complainant’s direction, 

21 transmission of a copy of the decision on 

22 the complaint to any person whom the 

23 complainant reasonably believes may have 

24 received such unfavorable information. 

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1 ‘‘(4) NOTICE TO AND ACTION OF COMPLAIN2 ANT.— 

3 ‘‘(A) NOTICE TO COMPLAINANT.—Not 

4 later than 90 days of the receipt of a complaint 

5 filed under paragraph (2), the Secretary shall 

6 notify, in writing, the miner or other employee, 

7 applicant for employment, or representative of 

8 miners of his determination whether a violation 

9 has occurred. 

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

11 Secretary, upon investigation, determines that 

12 the provisions of this subsection have not been 

13 violated, the complainant shall have the right, 

14 within 30 days notice of the Secretary’s deter15 mination, to file an action in his or her own be16 half before the Commission, charging discrimi17 nation or interference in violation of paragraph 

18 (1). 

19 ‘‘(C) HEARING AND DECISION.—The Com20 mission shall afford an opportunity for a hear21 ing (in accordance with section 554 of title 5, 

22 United States Code, but without regard to sub23 section (a)(3) of such section), and thereafter 

24 shall issue an order, based upon findings of 

25 fact, dismissing or sustaining the complainant’s 

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1 charges and, if the charges are sustained, 

2 granting such relief as it deems appropriate as 

3 described in paragraph (3)(F). Such order shall 

4 become final 30 days after its issuance. 

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

6 complaint pursuant to this subsection, the Commis7 sion may determine that a violation of paragraph (1) 

8 has occurred only if the complainant demonstrates 

9 that any conduct described in paragraph (1) with re10 spect to the complainant was a contributing factor 

11 in the adverse action alleged in the complaint. A de12 cision or order that is favorable to the complainant 

13 shall not be issued pursuant to this subsection if the 

14 respondent demonstrates by clear and convincing 

15 evidence that the respondent would have taken the 

16 same adverse action in the absence of such conduct. 

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

18 issued sustaining the complainant’s charges under 

19 this subsection, a sum equal to the aggregate 

20 amount of all costs and expenses, including attor21 ney’s fees, as determined by the Commission to have 

22 been reasonably incurred by the complainant for, or 

23 in connection with, the institution and prosecution of 

24 such proceedings shall be assessed against the per25 son committing such violation. The Commission 

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1 shall determine whether such costs and expenses 

2 were reasonably incurred by the complainant without 

3 reference to whether the Secretary also participated 

4 in the proceeding. 

5 ‘‘(7) EXPEDITED PROCEEDINGS; JUDICIAL RE6 VIEW.—Proceedings under this subsection shall be 

7 expedited by the Secretary and the Commission. Any 

8 order issued by the Commission under this sub9 section shall be subject to judicial review in accord10 ance with section 106. Violations by any person of 

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

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

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

14 remedies provided for in this subsection may not be 

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

16 of employment, including by any pre-dispute arbitra17 tion agreement or collective bargaining agreement. 

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

19 be construed to diminish the rights, privileges, or 

20 remedies of any employee who exercises rights under 

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

22 any collective bargaining agreement.’’. 

23 SEC. 402. PROTECTION FROM LOSS OF PAY. 

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

25 follows: 

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1 ‘‘SEC. 111. ENTITLEMENT OF MINERS. 

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

3 ‘‘(1) WITHDRAWAL ORDER.—If a coal or other 

4 mine or area of such mine is closed by an order 

5 issued under section 103, 104, 107, 108, or 110, all 

6 miners who are idled by such order shall be entitled, 

7 regardless of the result of any review of such order, 

8 to full compensation by the operator at their regular 

9 rates of pay and in accordance with their regular 

10 schedules of pay for the entire period for which they 

11 are idled. 

12 ‘‘(2) CLOSURE IN ADVANCE OF ORDER.—If the 

13 Secretary finds that such mine or such area of a 

14 mine was closed by the operator in anticipation of 

15 the issuance of such an order, all miners who are 

16 idled by such closure shall be entitled to full com17 pensation by the operator at their regular rates of 

18 pay and in accordance with their regular schedules 

19 of pay, from the time of such closure until such time 

20 as the Secretary authorizes reopening of such mine 

21 or such area of the mine. 

22 ‘‘(3) REFUSAL TO COMPLY.—Whenever an op23 erator violates or fails or refuses to comply with any 

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

25 110, all miners employed at the affected mine who 

26 would have been withdrawn from, or prevented from 

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

2 such order shall be entitled to full compensation by 

3 the operator at their regular rates of pay, in addi4 tion to pay received for work performed after such 

5 order was issued, for the period beginning when 

6 such order was issued and ending when such order 

7 is complied with, vacated, or terminated. 

8 ‘‘(b) ENFORCEMENT.— 

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

10 shall have authority to order compensation due 

11 under this section upon the filing of a complaint by 

12 a miner or his representative and after opportunity 

13 for hearing subject to section 554 of title 5, United 

14 States Code. Whenever the Commission issues an 

15 order sustaining the complaint under this subsection 

16 in whole or in part, the Commission shall award the 

17 complainant reasonable attorneys’ fees and costs. 

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

19 Consistent with the authority of the Secretary to 

20 order miners withdrawn from a mine under this Act, 

21 the Secretary shall order a mine that has been sub22 ject to a withdrawal order under section 103, 104, 

23 107, 108, or 110, and has reopened, to be closed 

24 again if compensation in accordance with the provi25 sions of this section is not paid by the end of the 

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1 next regularly scheduled payroll period following the 

2 lifting of a withdrawal order.’’. 

3 TITLE V—MODERNIZING 

4 HEALTH AND SAFETY STAND5 ARDS 

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

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

8 adding at the end the following: 

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

10 the interim final rules promulgated under subparagraph 

11 (C), each operator of an underground coal mine shall im12 plement a communication program at the underground 

13 coal mine to ensure that each miner entering the mine 

14 is made aware, at the start of such miner’s shift, of the 

15 current conditions of the mine, including— 

16 ‘‘(i) any conditions that are hazardous or that 

17 violate a mandatory health or safety standard or a 

18 plan approved under this Act; and 

19 ‘‘(ii) the general conditions of that miner’s as20 signed working section or other area. 

21 ‘‘(B) In an effort to facilitate the communications de22 scribed in subparagraph (A), each agent of the operator 

23 who is responsible for ensuring the safe and healthful 

24 working conditions at the mine, including mine foremen, 

25 assistant mine foremen, and mine examiners, shall, upon 

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1 exiting the mine or workplace, verbally communicate with 

2 any oncoming agent replacing the exiting agent on duty 

3 in order to update the oncoming agent on the conditions 

4 the exiting agent observed during the exiting agent’s shift, 

5 including any conditions that are hazardous or that violate 

6 a mandatory health or safety standard or a plan approved 

7 under this Act. Such communications process shall be 

8 completed prior to the start of each shift at the mine and 

9 recorded in a book designated for that purpose and avail10 able for inspection by all interested parties. In the event 

11 the mine operation is idle prior to the start of any shift, 

12 the oncoming agent of the operator shall meet with the 

13 individual who was responsible for examining the mine to 

14 obtain the necessary information. 

15 ‘‘(C) Not later than 90 days after the date of enact16 ment of the Robert C. Byrd Mine and Workplace Safety 

17 and Health Act of 2011, the Secretary shall promulgate 

18 interim final rules implementing the requirements of sub19 paragraphs (A) and (B).’’. 

20 SEC. 502. ROCK DUST STANDARDS. 

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

22 is amended— 

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

24 following: ‘‘ROCK DUST.— 

25 ‘‘(1) IN GENERAL.—Where rock’’; 

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

2 follows and inserting ‘‘80 percent. Where methane is 

3 present in any ventilating current, the percentage of 

4 incombustible content of such combined dusts shall 

5 be increased 0.4 percent for each 0.1 percent of 

6 methane.’’; and 

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

8 ‘‘(2) METHODS OF MEASUREMENT.— 

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

10 underground coal mine shall take accurate sam11 ples of the amount of coal dust, including float 

12 coal dust deposited on rock-dusted surfaces, 

13 loose coal, and other combustible materials in 

14 the active workings of such mines, to ensure 

15 that the coal dust is kept below explosive levels 

16 through the appropriate application of rock 

17 dusting. 

18 ‘‘(B) DIRECT READING MONITORS.—By 

19 the later of June 15, 2012, or the date that is 

20 30 days after the Secretary of Health and 

21 Human Services has certified in writing that di22 rect reading monitors are commercially avail23 able to measure total incombustible content in 

24 coal dust and the Department of Labor has ap25 proved such monitors for use in underground 

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1 coal mines, the Secretary shall require opera2 tors to take coal dust samples using direct 

3 reading monitors. 

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

5 not later than 180 days after the date of enact6 ment of the Robert C. Byrd Mine and Work7 place Safety and Health Act of 2011 promul8 gate an interim final rule that prescribes meth9 ods for sampling of total incombustible content 

10 of coal dust using direct reading monitors and 

11 includes requirements for locations, methods, 

12 and intervals for mandatory operator sampling. 

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

14 1 year after the date of enactment of the Rob15 ert C. Byrd Mine and Workplace Safety and 

16 Health Act of 2011, the Secretary of Health 

17 and Human Services shall, based upon the lat18 est research, recommend to the Secretary of 

19 Labor any revisions to the mandatory operator 

20 sampling locations, methods, and intervals in21 cluded in the interim final rule described in 

22 subparagraph (C) that may be warranted in 

23 light of such research.’’. 

24 (b) REPORT.—Not later than 2 years after the date 

25 of enactment of this Act, the Secretary of Health and 

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1 Human Services, in consultation with the Secretary of 

2 Labor, shall prepare and submit, to the Committee on 

3 Education and the Workforce of the House of Representa4 tives and the Committee on Health, Education, Labor, 

5 and Pensions of the Senate, a report— 

6 (1) regarding whether any direct reading device 

7 described in section 304(d)(2)(B) of the Federal 

8 Mine Safety and Health Act of 1977 (30 U.S.C. 

9 864(d)(2)(B)) is sufficiently reliable and accurate 

10 for the enforcement of the mandatory health or safe11 ty standards by the Secretary of Labor under such 

12 Act, and whether additional improvement to such di13 rect reading device, or additional verification regard14 ing reliability and accuracy, would be needed for en15 forcement purposes; and 

16 (2) identifying any limitations or impediments 

17 for such use in underground coal mines. 

18 SEC. 503. ATMOSPHERIC MONITORING SYSTEMS. 

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

20 at the end the following: 

21 ‘‘(u) ATMOSPHERIC MONITORING SYSTEMS.— 

22 ‘‘(1) NIOSH RECOMMENDATIONS.—Not later 

23 than 6 months after the date of enactment of the 

24 Robert C. Byrd Mine and Workplace Safety and 

25 Health Act of 2011, the Director of the National Inmstockstill on DSKH9S0YB1PROD with BILLS

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1 stitute for Occupational Safety and Health, acting 

2 through the Office of Mine Safety and Health Re3 search, shall issue recommendations to the Secretary 

4 regarding— 

5 ‘‘(A) how to ensure that atmospheric moni6 toring systems are utilized in the underground 

7 coal mining industry to maximize the health 

8 and safety of underground coal miners; and 

9 ‘‘(B) the implementation of redundant sys10 tems, such as the bundle tubing system, that 

11 can continuously monitor the mine atmosphere 

12 following incidents such as fires, explosions, en13 trapments, and inundations. 

14 ‘‘(2) ATMOSPHERIC MONITORING SYSTEM REG15 ULATIONS.—Not later than 270 days following the 

16 receipt of the recommendations described in para17 graph (1), the Secretary shall promulgate regula18 tions requiring that each operator of an under19 ground coal mine install atmospheric monitoring sys20 tems, consistent with such recommendations, that— 

21 ‘‘(A) protect miners where the miners nor22 mally work and travel; 

23 ‘‘(B) provide real-time information regard24 ing methane and carbon monoxide levels, and 

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1 airflow direction, as appropriate, with sensing, 

2 annunciating, and recording capabilities; and 

3 ‘‘(C) can, to the maximum extent prac4 ticable, withstand explosions and fires.’’. 

5 SEC. 504. TECHNOLOGY RELATED TO RESPIRABLE DUST. 

6 Section 202(d) (30 U.S.C. 842(d)) is amended— 

7 (1) by striking ‘‘of Health and Human Serv8 ices’’; and 

9 (2) by striking the second sentence and insert10 ing the following: ‘‘Not later than 2 years after the 

11 date of enactment of the Robert C. Byrd Mine and 

12 Workplace Safety and Health Act of 2011, the Sec13 retary shall promulgate final regulations that require 

14 operators, beginning on the date such regulations 

15 are issued, to provide coal miners with the maximum 

16 feasible protection from respirable dust, including 

17 coal and silica dust, that is achievable through envi18 ronmental controls.’’. 

19 SEC. 505. REFRESHER TRAINING ON MINER RIGHTS AND 

20 RESPONSIBILITIES. 

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

22 825(a)(3)) is amended to read as follows: 

23 ‘‘(3) all miners shall receive not less than 9 

24 hours of refresher training not less frequently than 

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1 clude one hour of training on the statutory rights 

2 and responsibilities of miners and their representa3 tives under this Act and other applicable Federal 

4 and State law, pursuant to a program of instruction 

5 developed by the Secretary and delivered by an em6 ployee of the Administration or by a trainer ap7 proved by the Administration that is a party inde8 pendent from the operator;’’. 

9 (b) TIMING OF INITIAL STATUTORY RIGHTS TRAIN10 ING.—Notwithstanding section 115 of the Federal Mine 

11 Safety and Health Act of 1977 (as amended by subsection 

12 (a)) (30 U.S.C. 825) or the health and safety training pro13 gram approved under such section, an operator shall en14 sure that all miners already employed by the operator on 

15 the date of enactment of this Act shall receive the one 

16 hour of statutory rights and responsibilities training de17 scribed in section 115(a)(3) of such Act not later than 

18 180 days after such date. 

19 SEC. 506. AUTHORITY TO MANDATE ADDITIONAL TRAINING. 

20 (a) IN GENERAL.—Section 115 (30 U.S.C. 825) is 

21 further amended by redesignating subsection (e) as sub22 section (f) and inserting after subsection (d) the following: 

23 ‘‘(e) AUTHORITY TO MANDATE ADDITIONAL TRAIN24 ING.— 

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

2 to issue an order requiring that an operator of a 

3 coal or other mine provide additional training be4 yond what is otherwise required by law, and speci5 fying the time within which such training shall be 

6 provided, if the Secretary finds that— 

7 ‘‘(A)(i) a serious or fatal accident has oc8 curred at such mine; or 

9 ‘‘(ii) such mine has experienced accident 

10 and injury rates, citations for violations of this 

11 Act (including mandatory health or safety 

12 standards or regulations promulgated under 

13 this Act), citations for significant and substan14 tial violations, or withdrawal orders issued 

15 under this Act at a rate above the average for 

16 mines of similar size and type; and 

17 ‘‘(B) additional training would benefit the 

18 health and safety of miners at the mine. 

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

20 fails to provide training ordered under paragraph 

21 (1) within the specified time, the Secretary shall 

22 issue an order requiring such operator to cause all 

23 affected persons, except those persons referred to in 

24 section 104(c), to be withdrawn, and to be prohibmstockstill on DSKH9S0YB1PROD with BILLS

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1 ited from entering such mine, until such operator 

2 has provided such training.’’. 

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

4 (30 U.S.C. 814(g)(2)) is amended by striking ‘‘under 

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

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

7 SEC. 507. CERTIFICATION OF PERSONNEL. 

8 (a) IN GENERAL.—Title I is further amended by add9 ing at the end the following: 

10 ‘‘SEC. 117. CERTIFICATION OF PERSONNEL. 

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

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

13 mine to perform any duties or provide any training that 

14 this Act, including a mandatory health or safety standard 

15 or regulation promulgated pursuant to this Act, requires 

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

17 qualified, or otherwise approved person, shall be permitted 

18 to perform such duties or provide such training only if 

19 such person has a current certification, registration, quali20 fication, or approval to perform such duties or provide 

21 such training consistent with the requirements of this sec22 tion. 

23 ‘‘(b) ESTABLISHMENT OF CERTIFICATION REQUIRE24 MENTS AND PROCEDURES.— 

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

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

3 and Workplace Safety and Health Act of 2011, the 

4 Secretary shall issue mandatory standards to estab5 lish— 

6 ‘‘(A) requirements for such certification, 

7 registration, qualification, or other approval, in8 cluding the experience, examinations, and ref9 erences that may be required as appropriate; 

10 ‘‘(B) time limits for such certifications and 

11 procedures for obtaining and renewing such cer12 tification, registration, qualification, or other 

13 approval; and 

14 ‘‘(C) procedures and criteria for revoking 

15 such certification, registration, qualification, or 

16 other approval, including procedures that en17 sure that the Secretary responds to requests for 

18 revocation. 

19 ‘‘(2) COORDINATION WITH STATES.—In devel20 oping such standards, the Secretary shall consult 

21 with States that have miner certification programs 

22 to ensure effective coordination with existing State 

23 standards and requirements for certification. The 

24 standards required under paragraph (1) may provide 

25 that the certification, registration, qualification, or 

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1 other approval of the State in which the coal or 

2 other mine is located satisfies the requirement of 

3 subsection (a) if the State’s program of certification, 

4 registration, qualification, or other approval is no 

5 less stringent than the standards established by the 

6 Secretary under paragraph (1). 

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

8 ‘‘(1) ASSESSMENT AND COLLECTION.—Begin9 ning 180 days after the date of enactment of the 

10 Robert C. Byrd Mine and Workplace Safety and 

11 Health Act of 2011, the Secretary shall assess and 

12 collect fees, in accordance with this subsection, from 

13 each operator for each person certified under this 

14 section. Fees shall be assessed and collected in 

15 amounts determined by the Secretary as necessary 

16 to fund the certification programs established under 

17 this section. 

18 ‘‘(2) MINE SAFETY AND HEALTH CERTIFI19 CATION FUND.—There is established in the Treasury 

20 of the United States a separate account for the de21 posit of fees collected under this subsection to be 

22 known as the Mine Safety and Health Certification 

23 Fund. The Secretary shall deposit any fees collected 

24 pursuant to paragraph (1) into the fund. 

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1 ‘‘(3) USE.—Amounts in the Mine Safety and 

2 Health Certification Fund shall be available to the 

3 Secretary, as provided in paragraph (4), for making 

4 expenditures to carry out the certification programs 

5 established under this subsection. 

6 ‘‘(4) AUTHORIZATION OF APPROPRIATIONS.—In 

7 addition to funds appropriated under section 114, 

8 there is authorized to be appropriated from the Mine 

9 Safety and Health Certification Fund to the Assist10 ant Secretary for Mine Safety and Health for each 

11 fiscal year in which fees are collected under para12 graph (1) an amount equal to the total amount col13 lected during the previous fiscal year from fees as14 sessed pursuant to this subsection. Such amounts 

15 are authorized to remain available until expended. 

16 ‘‘(5) CREDITING AND AVAILABILITY OF FEES.— 

17 Fees authorized and collected under this subsection 

18 shall be available for obligation only to the extent 

19 and in the amount provided in advance in appropria20 tions Acts. 

21 ‘‘(d) CITATION; WITHDRAWAL ORDER.—Any oper22 ator who permits a person to perform any of the health 

23 or safety related functions described in subsection (a) 

24 without a current certification which meets the require25 ments of this section shall be considered to have commstockstill on DSKH9S0YB1PROD with BILLS

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1 mitted an unwarrantable failure under section 104(d)(1), 

2 and the Secretary shall issue an order requiring that the 

3 miner be withdrawn or reassigned to duties that do not 

4 require such certification.’’. 

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

6 U.S.C. 878) is amended— 

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

8 (2) in subsection (c), by redesignating para9 graphs (1) through (3) as subparagraphs (A) 

10 through (C), respectively; 

11 (3) in subsection (g), by redesignating para12 graphs (1) through (4) as subparagraphs (A) 

13 through (D), respectively; and 

14 (4) by redesignating subsections (c) through (j) 

15 as paragraphs (1) through (8), respectively. 

16 TITLE VI—ADDITIONAL MINE 

17 SAFETY PROVISIONS 

18 SEC. 601. DEFINITIONS. 

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

20 U.S.C. 802) is amended to read as follows: 

21 ‘‘(d) ‘operator’ means— 

22 ‘‘(1) any owner, lessee, or other person that— 

23 ‘‘(A) operates or supervises a coal or other 

24 mine; or 

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1 ‘‘(B) controls such mine by making or hav2 ing the authority to make management or oper3 ational decisions that affect, directly or indi4 rectly, the health or safety at such mine; or 

5 ‘‘(2) any independent contractor performing 

6 services or construction at such mine;’’. 

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

8 802(e)) is amended by striking ‘‘the miners’’ and inserting 

9 ‘‘any miner’’. 

10 (c) DEFINITION OF MINER.—Section 3(g) (30 U.S.C. 

11 802(g)) is amended by inserting after ‘‘or other mine’’ the 

12 following: ‘‘, and includes any individual who is not cur13 rently working in a coal or other mine but would be cur14 rently working in such mine, but for an accident in such 

15 mine’’. 

16 (d) DEFINITION OF SIGNIFICANT AND SUBSTANTIAL

17 VIOLATIONS.—Section 3 (30 U.S.C. 802) is further 

18 amended— 

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

20 the semicolon; 

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

22 the end and inserting a semicolon; 

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

24 the end and inserting ‘‘; and’’; and 

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

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1 ‘‘(p) ‘significant and substantial violation’ means a 

2 violation of this Act, including any mandatory health or 

3 safety standard or regulation promulgated under this Act, 

4 that is of such nature as could significantly and substan5 tially contribute to the cause and effect of a coal or other 

6 mine safety or health hazard as described in section 

7 104(d).’’. 

8 SEC. 602. ASSISTANCE TO STATES. 

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

10 (1) in subsection (a)— 

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

12 by striking ‘‘, in coordination with the Sec13 retary of Health, Education, and Welfare and 

14 the Secretary of the Interior,’’; 

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

16 after the semicolon; 

17 (C) in paragraph (3), by striking the pe18 riod and inserting ‘‘; and’’; and 

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

20 ‘‘(4) to assist such State in developing and im21 plementing any certification program for coal or 

22 other mines required for compliance with section 

23 117.’’; and 

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

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1 ceeding fiscal year’’ and inserting ‘‘$20,000,000 for 

2 each fiscal year’’. 

3 SEC. 603. BLACK LUNG MEDICAL REPORTS. 

4 Title IV of the Black Lung Benefits Act (30 U.S.C. 

5 901 et seq.) is amended by adding at the end the fol6 lowing: 

7 ‘‘SEC. 435. MEDICAL REPORTS. 

8 ‘‘In any claim for benefits for a miner under this title, 

9 an operator that requires a miner to submit to a medical 

10 examination regarding the miner’s respiratory or pul11 monary condition shall, not later than 14 days after the 

12 miner has been examined, deliver to the claimant a com13 plete copy of the examining physician’s report. The exam14 ining physician’s report shall be in writing and shall set 

15 out in detail the examiner’s findings, including any diag16 noses and conclusions and the results of any diagnostic 

17 imaging techniques and tests that were performed on the 

18 miner.’’. 

19 SEC. 604. STUDY ON WORKFORCE NEEDS. 

20 (a) IN GENERAL.—Not later than 18 months after 

21 the date of enactment of this Act, the Comptroller General 

22 of the United States shall conduct a study on the work23 force needs of the mining industry and Federal and State 

24 enforcement agencies, including the need for engineers 

25 and mine safety and health professionals. 

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1 (b) ISSUES TO BE STUDIED.—The study in sub2 section (a) shall include— 

3 (1) an analysis of the training and expertise of 

4 the mine engineers and the safety and health work5 force; and 

6 (2) the need for a highly trained workforce of 

7 engineers and safety and health professionals with8 in— 

9 (A) the mining industry; 

10 (B) the Mine Safety Health Administra11 tion; and 

12 (C) State enforcement agencies responsible 

13 for mine safety and health. 

14 (c) REPORT.—The Comptroller General of the United 

15 States shall prepare and submit to the Committee on 

16 Health, Education, Labor, and Pensions of the Senate and 

17 to the Committee on Education and the Workforce of the 

18 House of Representatives a report on the study in sub19 section (a). 

20 (d) RECOMMENDATIONS.—As needed, the Comp21 troller General of the United States shall provide rec22 ommendations for improvement in the report in subsection 

23 (c). 

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1 SEC. 605. MINE SAFETY AND HEALTH ADMINISTRATION 

2 STRATEGIC PLANNING. 

3 (a) STRATEGIC PLAN.—Not later than December 31, 

4 2011, the Secretary of Labor, acting through the Assist5 ant Secretary of Labor for Mine Safety and Health, shall 

6 submit to the Director of the Office of Management and 

7 Budget and to the Congress and post on the public website 

8 of the Mine Safety and Health Administration, a 5-year 

9 strategic plan for program activities. Such plan shall be— 

10 (1) prepared in accordance with the require11 ments for agency strategic plans under section 306 

12 of title 5, United States Code, except as otherwise 

13 provided in this section; 

14 (2) aligned with the strategic plan of the De15 partment of Labor; and 

16 (3) revised at least once every 4 years. 

17 (b) ANNUAL PERFORMANCE PLAN.—Beginning with 

18 the Mine Safety and Health Administration budget sub19 mission for fiscal year 2013, the Secretary of Labor, act20 ing through the Assistant Secretary of Labor for Mine 

21 Safety and Health, shall submit to the Director of the Of22 fice of Management and Budget an annual performance 

23 plan covering each program activity set forth in the budget 

24 of the Mine Safety and Health Administration. Such plan 

25 shall— 

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1 (1) be prepared in accordance with the require2 ments for performance plans under section 1115 of 

3 title 31, United States Code, except as otherwise 

4 provided in this section; 

5 (2) be consistent with the strategic plan of the 

6 Mine Safety and Health Administration under sub7 section (a); and 

8 (3) include a strategic workforce plan that pro9 vides a clear line of sight between the performance 

10 goals and objectives of the Mine Safety and Health 

11 Administration and the human capital strategies em12 ployed to meet such goals and objectives. 

13 (c) REPORT.—Not later than 150 days after the end 

14 of a fiscal year, beginning with fiscal year 2013, the Sec15 retary of Labor, acting through the Assistant Secretary 

16 of Labor for Mine Safety and Health, shall prepare and 

17 submit to the President and the Congress and post on the 

18 public website of the Mine Safety and Health Administra19 tion, a report on the program performance for the previous 

20 fiscal year. Such report shall— 

21 (1) be prepared in accordance with the require22 ments for program performance reports under sec23 tion 1116 of title 31, United States Code; and 

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1 (2) address the extent to which the Mine Safety 

2 and Health Administration is using performance in3 formation to improve program performance. 

4 TITLE VII—AMENDMENTS TO 

5 THE OCCUPATIONAL SAFETY 

6 AND HEALTH ACT 

7 SEC. 701. ENHANCED PROTECTIONS FROM RETALIATION. 

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

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

10 660(c)(1)) is amended— 

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

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

13 ‘‘discharge or cause to be discharged, or in any man14 ner discriminate against or cause to be discriminated 

15 against, any employee because— 

16 ‘‘(A) such’’; 

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

18 the following: ‘‘this Act; 

19 ‘‘(B) such employee has’’; 

20 (3) by striking ‘‘such proceeding or because of 

21 the exercise’’ and inserting the following: ‘‘before 

22 Congress or in any Federal or State proceeding re23 lated to safety or health; 

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

25 provision of this Act; or 

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1 ‘‘(D) of the exercise’’; and 

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

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

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

5 the employer, safety and health committee involved, 

6 or employee safety and health representative in7 volved’’. 

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

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

10 paragraph (2) and inserting the following: 

11 ‘‘(2)(A) No person shall discharge, or cause to be dis12 charged, or in any manner discriminate against, or cause 

13 to be discriminated against, an employee for refusing to 

14 perform the employee’s duties if the employee has a rea15 sonable apprehension that performing such duties would 

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

17 health of, the employee or other employees. 

18 ‘‘(B) For purposes of subparagraph (A), the cir19 cumstances causing the employee’s good-faith belief that 

20 performing such duties would pose a safety or health haz21 ard shall be of such a nature that a reasonable person, 

22 under the circumstances confronting the employee, would 

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

24 for protection under this paragraph, the employee, when 

25 practicable, shall have communicated or attempted to commstockstill on DSKH9S0YB1PROD with BILLS

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1 municate the safety or health concern to the employer and 

2 have not received from the employer a response reasonably 

3 calculated to allay such concern.’’. 

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

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

6 inserting the following: 

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

8 that the employee has been discharged, disciplined, 

9 or otherwise discriminated against by any person in 

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

11 such violation by filing a complaint with the Sec12 retary under paragraph (5). 

13 ‘‘(4) STATUTE OF LIMITATIONS.— 

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

15 the action permitted by paragraph (3) not later 

16 than 180 days after the later of— 

17 ‘‘(i) the date on which an alleged vio18 lation of paragraph (1) or (2) occurs; or 

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

20 knows or should reasonably have known 

21 that such alleged violation occurred. 

22 ‘‘(B) REPEAT VIOLATION.—Except in 

23 cases when the employee has been discharged, 

24 a violation of paragraph (1) or (2) shall be conmstockstill on DSKH9S0YB1PROD with BILLS

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1 sidered to have occurred on the last date an al2 leged repeat violation occurred. 

3 ‘‘(5) INVESTIGATION.— 

4 ‘‘(A) IN GENERAL.—An employee may, 

5 within the time period required under para6 graph (4), file a complaint with the Secretary 

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

8 the complaint alleges a prima facie case, the 

9 Secretary shall conduct an investigation of the 

10 allegations in the complaint, which— 

11 ‘‘(i) shall include— 

12 ‘‘(I) interviewing the complain13 ant; 

14 ‘‘(II) providing the respondent an 

15 opportunity to— 

16 ‘‘(aa) submit to the Sec17 retary a written response to the 

18 complaint; and 

19 ‘‘(bb) meet with the Sec20 retary to present statements from 

21 witnesses or provide evidence; 

22 and 

23 ‘‘(III) providing the complainant 

24 an opportunity to— 

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1 ‘‘(aa) receive any statements 

2 or evidence provided to the Sec3 retary; 

4 ‘‘(bb) meet with the Sec5 retary; and 

6 ‘‘(cc) rebut any statements 

7 or evidence; and 

8 ‘‘(ii) may include issuing subpoenas 

9 for the purposes of such investigation. 

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

11 after the filing of the complaint, the Secretary 

12 shall— 

13 ‘‘(i) determine whether reasonable 

14 cause exists to believe that a violation of 

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

16 ‘‘(ii) issue a decision granting or de17 nying relief. 

18 ‘‘(6) PRELIMINARY ORDER FOLLOWING INVES19 TIGATION.—If, after completion of an investigation 

20 under paragraph (5)(A), the Secretary finds reason21 able cause to believe that a violation of paragraph 

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

23 preliminary order providing relief authorized under 

24 paragraph (14) at the same time the Secretary 

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

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1 novo hearing is not requested within the time period 

2 required under paragraph (7)(A)(i), such prelimi3 nary order shall be deemed a final order of the Sec4 retary and is not subject to judicial review. 

5 ‘‘(7) HEARING.— 

6 ‘‘(A) REQUEST FOR HEARING.— 

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

8 on the record before an administrative law 

9 judge may be requested— 

10 ‘‘(I) by the complainant or re11 spondent within 30 days after receiv12 ing notification of a decision granting 

13 or denying relief issued under para14 graph 5(D) or paragraph (6) respec15 tively; 

16 ‘‘(II) by the complainant within 

17 30 days after the date the complaint 

18 is dismissed without investigation by 

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

20 or 

21 ‘‘(III) by the complainant within 

22 120 days after the date of filing the 

23 complaint, if the Secretary has not 

24 issued a decision under paragraph 

25 (5)(B). 

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1 ‘‘(ii) REINSTATEMENT ORDER.—The 

2 request for a hearing shall not operate to 

3 stay any preliminary reinstatement order 

4 issued under paragraph (6). 

5 ‘‘(B) PROCEDURES.— 

6 ‘‘(i) IN GENERAL.—A hearing re7 quested under this paragraph shall be con8 ducted expeditiously and in accordance 

9 with rules established by the Secretary for 

10 hearings conducted by administrative law 

11 judges. 

12 ‘‘(ii) SUBPOENAS; PRODUCTION OF

13 EVIDENCE.—In conducting any such hear14 ing, the administrative law judge may issue 

15 subpoenas. The respondent or complainant 

16 may request the issuance of subpoenas 

17 that require the deposition of, or the at18 tendance and testimony of, witnesses and 

19 the production of any evidence (including 

20 any books, papers, documents, or record21 ings) relating to the matter under consid22 eration. 

23 ‘‘(iii) DECISION.—The administrative 

24 law judge shall issue a decision not later 

25 than 90 days after the date on which a 

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1 hearing was requested under this para2 graph and promptly notify, in writing, the 

3 parties and the Secretary of such decision, 

4 including the findings of fact and conclu5 sions of law. If the administrative law 

6 judge finds that a violation of paragraph 

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

8 issue an order for relief under paragraph 

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

10 timely requested, such order shall be 

11 deemed a final order of the Secretary that 

12 is not subject to judicial review. 

13 ‘‘(8) ADMINISTRATIVE APPEAL.— 

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

15 days after the date of notification of a decision 

16 and order issued by an administrative law judge 

17 under paragraph (7), the complainant or re18 spondent may file, with objections, an adminis19 trative appeal with an administrative review 

20 body designated by the Secretary (referred to in 

21 this paragraph as the ‘review board’). 

22 ‘‘(B) STANDARD OF REVIEW.—In review23 ing the decision and order of the administrative 

24 law judge, the review board shall affirm the de25 cision and order if it is determined that the facmstockstill on DSKH9S0YB1PROD with BILLS

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1 tual findings set forth therein are supported by 

2 substantial evidence and the decision and order 

3 are made in accordance with applicable law. 

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

5 grants an administrative appeal, the review 

6 board shall issue a final decision and order af7 firming or reversing, in whole or in part, the 

8 decision under review by not later than 90 days 

9 after receipt of the administrative appeal. If it 

10 is determined that a violation of paragraph (1) 

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

12 a final decision and order providing relief au13 thorized under paragraph (14). Such decision 

14 and order shall constitute final agency action 

15 with respect to the matter appealed. 

16 ‘‘(9) SETTLEMENT IN THE ADMINISTRATIVE

17 PROCESS.— 

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

19 issuance of a final order, an investigation or 

20 proceeding under this subsection may be termi21 nated on the basis of a settlement agreement 

22 entered into by the parties. 

23 ‘‘(B) PUBLIC POLICY CONSIDERATIONS.— 

24 Neither the Secretary, an administrative law 

25 judge, or review board conducting a hearing 

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1 under this subsection shall accept a settlement 

2 that contains conditions conflicting with the 

3 rights protected under this Act or that are con4 trary to public policy, including a restriction on 

5 a complainant’s right to future employment 

6 with employers other than the specific employ7 ers named in a complaint. 

8 ‘‘(10) INACTION BY THE REVIEW BOARD OR AD9 MINISTRATIVE LAW JUDGE.— 

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

11 bring a de novo action described in subpara12 graph (B) if— 

13 ‘‘(i) an administrative law judge has 

14 not issued a decision and order within the 

15 90-day time period required under para16 graph (7)(B)(iii); or 

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

18 a decision and order within the 90-day 

19 time period required under paragraph 

20 (8)(C). 

21 ‘‘(B) DE NOVO ACTION.—Such de novo ac22 tion may be brought at law or equity in the 

23 United States district court for the district 

24 where a violation of paragraph (1) or (2) alleg25 edly occurred or where the complainant resided 

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1 on the date of such alleged violation. The court 

2 shall have jurisdiction over such action without 

3 regard to the amount in controversy and to 

4 order appropriate relief under paragraph (14). 

5 Such action shall, at the request of either party 

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

7 jury. 

8 ‘‘(11) JUDICIAL REVIEW.— 

9 ‘‘(A) TIMELY APPEAL TO THE COURT OF

10 APPEALS.—Any party adversely affected or ag11 grieved by a final decision and order issued 

12 under this subsection may obtain review of such 

13 decision and order in the United States Court 

14 of Appeals for the circuit where the violation, 

15 with respect to which such final decision and 

16 order was issued, allegedly occurred or where 

17 the complainant resided on the date of such al18 leged violation. To obtain such review, a party 

19 shall file a petition for review not later than 60 

20 days after the final decision and order was 

21 issued. Such review shall conform to chapter 7 

22 of title 5, United States Code. The commence23 ment of proceedings under this subparagraph 

24 shall not, unless ordered by the court, operate 

25 as a stay of the final decision and order. 

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1 ‘‘(B) LIMITATION ON COLLATERAL AT2 TACK.—An order and decision with respect to 

3 which review may be obtained under subpara4 graph (A) shall not be subject to judicial review 

5 in any criminal or other civil proceeding. 

6 ‘‘(12) ENFORCEMENT OF ORDER.—If a re7 spondent fails to comply with an order issued under 

8 this subsection, the Secretary or the complainant on 

9 whose behalf the order was issued may file a civil ac10 tion for enforcement in the United States district 

11 court for the district in which the violation was 

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

13 Secretary and the complainant file such action, the 

14 action of the Secretary shall take precedence. The 

15 district court shall have jurisdiction to grant all ap16 propriate relief described in paragraph (14). 

17 ‘‘(13) BURDENS OF PROOF.— 

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

19 making a determination or adjudicating a com20 plaint pursuant to this subsection, the Sec21 retary, administrative law judge, review board, 

22 or a court may determine that a violation of 

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

24 complainant demonstrates that any conduct de25 scribed in paragraph (1) or (2) with respect to 

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1 the complainant was a contributing factor in 

2 the adverse action alleged in the complaint. 

3 ‘‘(B) PROHIBITION.—Notwithstanding sub4 paragraph (A), a decision or order that is favor5 able to the complainant shall not be issued in 

6 any administrative or judicial action pursuant 

7 to this subsection if the respondent dem8 onstrates by clear and convincing evidence that 

9 the respondent would have taken the same ad10 verse action in the absence of such conduct. 

11 ‘‘(14) RELIEF.— 

12 ‘‘(A) ORDER FOR RELIEF.—If the Sec13 retary, administrative law judge, review board, 

14 or a court determines that a violation of para15 graph (1) or (2) has occurred, the Secretary or 

16 court, respectively, shall have jurisdiction to 

17 order all appropriate relief, including injunctive 

18 relief, compensatory and exemplary damages, 

19 including— 

20 ‘‘(i) affirmative action to abate the 

21 violation; 

22 ‘‘(ii) reinstatement without loss of po23 sition or seniority, and restoration of the 

24 terms, rights, conditions, and privileges as25 sociated with the complainant’s employmstockstill on DSKH9S0YB1PROD with BILLS

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1 ment, including opportunities for pro2 motions to positions with equivalent or bet3 ter compensation for which the complain4 ant is qualified; 

5 ‘‘(iii) compensatory and consequential 

6 damages sufficient to make the complain7 ant whole, (including back pay, prejudg8 ment interest, and other damages); and 

9 ‘‘(iv) expungement of all warnings, 

10 reprimands, or derogatory references that 

11 have been placed in paper or electronic 

12 records or databases of any type relating 

13 to the actions by the complainant that 

14 gave rise to the unfavorable personnel ac15 tion, and, at the complainant’s direction, 

16 transmission of a copy of the decision on 

17 the complaint to any person whom the 

18 complainant reasonably believes may have 

19 received such unfavorable information. 

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

21 the Secretary or an administrative law judge, 

22 review board, or court grants an order for relief 

23 under subparagraph (A), the Secretary, admin24 istrative law judge, review board, or court, remstockstill on DSKH9S0YB1PROD with BILLS

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1 spectively, shall assess, at the request of the 

2 employee against the employer— 

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

4 ‘‘(ii) costs (including expert witness 

5 fees) reasonably incurred, as determined 

6 by the Secretary, administrative law judge, 

7 review board, or court, respectively, in con8 nection with bringing the complaint upon 

9 which the order was issued. 

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

11 remedies provided for in this subsection may not be 

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

13 of employment, including by any pre-dispute arbitra14 tion agreement or collective bargaining agreement. 

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

16 shall be construed to diminish the rights, privileges, 

17 or remedies of any employee who exercises rights 

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

19 under any collective bargaining agreement. 

20 ‘‘(17) ELECTION OF VENUE.— 

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

22 employer who is located in a State that has a 

23 State plan approved under section 18 may file 

24 a complaint alleging a violation of paragraph 

25 (1) or (2) by such employer with— 

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1 ‘‘(i) the Secretary under paragraph 

2 (5); or 

3 ‘‘(ii) a State plan administrator in 

4 such State. 

5 ‘‘(B) REFERRALS.—If— 

6 ‘‘(i) the Secretary receives a complaint 

7 pursuant to subparagraph (A)(i), the Sec8 retary shall not refer such complaint to a 

9 State plan administrator for resolution; or 

10 ‘‘(ii) a State plan administrator re11 ceives a complaint pursuant to subpara12 graph (A)(ii), the State plan administrator 

13 shall not refer such complaint to the Sec14 retary for resolution.’’. 

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

16 such Act (29 U.S.C. 666(j)) is amended by inserting be17 fore the period the following: ‘‘, including the history of 

18 violations under section 11(c)’’. 

19 SEC. 702. VICTIMS’ RIGHTS. 

20 The Occupational Safety and Health Act of 1970 (29 

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

22 9 (29 U.S.C. 658) the following: 

23 ‘‘SEC. 9A. VICTIMS’ RIGHTS. 

24 ‘‘(a) RIGHTS BEFORE THE SECRETARY.—A victim or 

25 the representative of a victim, shall be afforded the right, 

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1 with respect to an inspection or investigation conducted 

2 under section 8 to— 

3 ‘‘(1) meet with the Secretary regarding the in4 spection or investigation conducted under such sec5 tion before the Secretary’s decision to issue a cita6 tion or take no action; 

7 ‘‘(2) receive, at no cost, a copy of any citation 

8 or report, issued as a result of such inspection or in9 vestigation, at the same time as the employer re10 ceives such citation or report; 

11 ‘‘(3) be informed of any notice of contest or ad12 dition of parties to the proceedings filed under sec13 tion 10(c); and 

14 ‘‘(4) be provided notification of the date and 

15 time or any proceedings, service of pleadings, and 

16 other relevant documents, and an explanation of the 

17 rights of the employer, employee and employee rep18 resentative, and victim to participate in proceedings 

19 conducted under section 10(c). 

20 ‘‘(b) RIGHTS BEFORE THE COMMISSION.—Upon re21 quest, a victim or representative of a victim shall be af22 forded the right with respect to a work-related bodily in23 jury or death to— 

24 ‘‘(1) be notified of the time and date of any 

25 proceeding before the Commission; 

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1 ‘‘(2) receive pleadings and any decisions relat2 ing to the proceedings; and 

3 ‘‘(3) be provided an opportunity to appear and 

4 make a statement in accordance with the rules pre5 scribed by the Commission. 

6 ‘‘(c) MODIFICATION OF CITATION.—Before entering 

7 into an agreement to withdraw or modify a citation issued 

8 as a result of an inspection or investigation of an incident 

9 under section 8, the Secretary shall notify a victim or rep10 resentative of a victim and provide the victim or represent11 ative of a victim with an opportunity to appear and make 

12 a statement before the parties conducting settlement nego13 tiations. In lieu of an appearance, the victim or represent14 ative of the victim may elect to submit a letter to the Sec15 retary and the parties. 

16 ‘‘(d) SECRETARY PROCEDURES.—The Secretary shall 

17 establish procedures— 

18 ‘‘(1) to inform victims of their rights under this 

19 section; and 

20 ‘‘(2) for the informal review of any claim of a 

21 denial of such a right. 

22 ‘‘(e) COMMISSION PROCEDURES AND CONSIDER23 ATIONS.—The Commission shall— 

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1 ‘‘(1) establish procedures relating to the rights 

2 of victims to be heard in proceedings before the 

3 Commission; and 

4 ‘‘(2) in rendering any decision, provide due con5 sideration to any statement or information provided 

6 by any victim before the Commission. 

7 ‘‘(f) FAMILY LIAISONS.—The Secretary shall des8 ignate at least 1 employee at each area office of the Occu9 pational Safety and Health Administration to serve as a 

10 family liaison to— 

11 ‘‘(1) keep victims informed of the status of in12 vestigations, enforcement actions, and settlement ne13 gotiations; and 

14 ‘‘(2) assist victims in asserting their rights 

15 under this section. 

16 ‘‘(g) DEFINITION.—In this section, the term ‘victim’ 

17 means— 

18 ‘‘(1) an employee, including a former employee, 

19 who has sustained a work-related injury or illness 

20 that is the subject of an inspection or investigation 

21 conducted under section 8; or 

22 ‘‘(2) a family member (as further defined by 

23 the Secretary) of a victim described in paragraph 

24 (1), if— 

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1 ‘‘(A) the victim dies as a result of a inci2 dent that is the subject of an inspection or in3 vestigation conducted under section 8; or 

4 ‘‘(B) the victim sustains a work-related in5 jury or illness that is the subject of an inspec6 tion or investigation conducted under section 8, 

7 and the victim because of incapacity cannot rea8 sonably exercise the rights under this section.’’. 

9 SEC. 703. CORRECTION OF SERIOUS, WILLFUL, OR RE10 PEATED VIOLATIONS PENDING CONTEST AND 

11 PROCEDURES FOR A STAY. 

12 Section 10 of the Occupational Safety and Health Act 

13 of 1970 (29 U.S.C. 659) is amended by adding at the end 

14 the following: 

15 ‘‘(d) CORRECTION OF SERIOUS, WILLFUL, OR RE16 PEATED VIOLATIONS PENDING CONTEST AND PROCE17 DURES FOR A STAY.— 

18 ‘‘(1) PERIOD PERMITTED FOR CORRECTION OF

19 SERIOUS, WILLFUL, OR REPEATED VIOLATIONS.— 

20 For each violation which the Secretary designates as 

21 serious, willful, or repeated, the period permitted for 

22 the correction of the violation shall begin to run 

23 upon receipt of the citation. 

24 ‘‘(2) FILING OF A MOTION OF CONTEST.—The 

25 filing of a notice of contest by an employer— 

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1 ‘‘(A) shall not operate as a stay of the pe2 riod for correction of a violation designated as 

3 serious, willful, or repeated; and 

4 ‘‘(B) may operate as a stay of the period 

5 for correction of a violation not designated by 

6 the Secretary as serious, willful, or repeated. 

7 ‘‘(3) CRITERIA AND RULES OF PROCEDURE FOR

8 STAYS.— 

9 ‘‘(A) MOTION FOR A STAY.—An employer 

10 may file with the Commission a motion to stay 

11 a period for the correction of a violation des12 ignated as serious, willful, or repeated. 

13 ‘‘(B) CRITERIA.—In determining whether 

14 a stay should be issued on the basis of a motion 

15 filed under subparagraph (A), the Commission 

16 shall consider whether— 

17 ‘‘(i) the employer has demonstrated a 

18 substantial likelihood of success on its con19 test to the citation; 

20 ‘‘(ii) the employer will suffer irrep21 arable harm absent a stay; and 

22 ‘‘(iii) a stay will adversely affect the 

23 health and safety of workers. 

24 ‘‘(C) RULES OF PROCEDURE.—The Com25 mission shall develop rules of procedure for conmstockstill on DSKH9S0YB1PROD with BILLS

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1 ducting a hearing on a motion filed under sub2 paragraph (A) on an expedited basis. At a min3 imum, such rules shall provide: 

4 ‘‘(i) That a hearing before an admin5 istrative law judge shall occur not later 

6 than 15 days following the filing of the 

7 motion for a stay (unless extended at the 

8 request of the employer), and shall provide 

9 for a decision on the motion not later than 

10 15 days following the hearing (unless ex11 tended at the request of the employer). 

12 ‘‘(ii) That a decision of an administra13 tive law judge on a motion for stay is ren14 dered on a timely basis. 

15 ‘‘(iii) That if a party is aggrieved by 

16 a decision issued by an administrative law 

17 judge regarding the stay, such party has 

18 the right to file an objection with the Com19 mission not later than 5 days after receipt 

20 of the administrative law judge’s decision. 

21 Within 10 days after receipt of the objec22 tion, a Commissioner, if a quorum is seat23 ed pursuant to section 12(f), shall decide 

24 whether to grant review of the objection. 

25 If, within 10 days after receipt of the obmstockstill on DSKH9S0YB1PROD with BILLS

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1 jection, no decision is made on whether to 

2 review the decision of the administrative 

3 law judge, the Commission declines to re4 view such decision, or no quorum is seated, 

5 the decision of the administrative law 

6 judge shall become a final order of the 

7 Commission. If the Commission grants re8 view of the objection, the Commission shall 

9 issue a decision regarding the stay not 

10 later than 30 days after receipt of the ob11 jection. If the Commission fails to issue 

12 such decision within 30 days, the decision 

13 of the administrative law judge shall be14 come a final order of the Commission. 

15 ‘‘(iv) For notification to employees or 

16 representatives of affected employees of re17 quests for such hearings and shall provide 

18 affected employees or representatives of af19 fected employees an opportunity to partici20 pate as parties to such hearings.’’. 

21 SEC. 704. CONFORMING AMENDMENTS. 

22 (a) SECTION 17.—Section 17(d) of the Occupational 

23 Safety and Health Act of 1970 (29 U.S.C. 666(d)) is 

24 amended to read as follows: 

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1 ‘‘(d) Any employer who fails to correct a violation 

2 designated by the Secretary as serious, willful, or repeated 

3 and for which a citation has been issued under section 9(a) 

4 within the period permitted for its correction (and a stay 

5 has not been issued by the Commission under section 

6 10(d)) may be assessed a civil penalty of not more than 

7 $7,000 for each day during which such failure or violation 

8 continues. Any employer who fails to correct any other vio9 lation for which a citation has been issued under section 

10 9(a) of this title within the period permitted for its correc11 tion (which period shall not begin to run until the date 

12 of the final order of the Commission in the case of any 

13 review proceeding under section 10 initiated by the em14 ployer in good faith and not solely for delay of avoidance 

15 of penalties) may be assessed a civil penalty of not more 

16 than $7,000 for each day during which such failure or vio17 lation continues.’’. 

18 SEC. 705. CIVIL PENALTIES. 

19 (a) IN GENERAL.—Section 17 of the Occupational 

20 Safety and Health Act of 1970 (29 U.S.C. 666) is amend21 ed— 

22 (1) in subsection (a)— 

23 (A) by striking ‘‘$70,000’’ and inserting 

24 ‘‘$120,000’’; 

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1 (B) by striking ‘‘$5,000’’ and inserting 

2 ‘‘$8,000’’; and 

3 (C) by adding at the end the following: ‘‘In 

4 determining whether a violation is repeated, the 

5 Secretary shall consider the employer’s history 

6 of violations under this Act and under State oc7 cupational safety and health plans established 

8 under section 18. If such a willful or repeated 

9 violation caused or contributed to the death of 

10 an employee, such civil penalty amounts shall 

11 be increased to not more than $250,000 for 

12 each such violation, but not less than $50,000 

13 for each such violation, except that for an em14 ployer with 25 or fewer employees such penalty 

15 shall not be less than $25,000 for each such 

16 violation.’’; 

17 (2) in subsection (b)— 

18 (A) by striking ‘‘$7,000’’ and inserting 

19 ‘‘$12,000’’; and 

20 (B) by adding at the end the following: ‘‘If 

21 such a violation caused or contributed to the 

22 death of an employee, such civil penalty 

23 amounts shall be increased to not more than 

24 $50,000 for each such violation, but not less 

25 than $20,000 for each such violation, except 

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1 that for an employer with 25 or fewer employ2 ees such penalty shall not be less than $10,000 

3 for each such violation.’’; 

4 (3) in subsection (c), by striking ‘‘$7,000’’ and 

5 inserting ‘‘$12,000’’; 

6 (4) in subsection (d), as amended, by striking 

7 ‘‘$7,000’’ each place it occurs and inserting 

8 ‘‘$12,000’’; 

9 (5) by redesignating subsections (e) through (l) 

10 as subsections (f) through (m), respectively; and 

11 (6) in subsection (j) (as redesignated by para12 graph (5)), by striking ‘‘$7,000’’ and inserting 

13 ‘‘$12,000;’’. 

14 (b) INFLATION ADJUSTMENT.—Section 17 is further 

15 amended by inserting after subsection (d) the following: 

16 ‘‘(e) Amounts provided under this section for civil 

17 penalties shall be adjusted by the Secretary at least once 

18 during each 4-year period beginning January 1, 2015, to 

19 account for the percentage increase or decrease in the 

20 Consumer Price Index for all urban consumers during 

21 such period.’’. 

22 SEC. 706. CRIMINAL PENALTIES. 

23 (a) IN GENERAL.—Section 17 (29 U.S.C. 666) (as 

24 amended by section 705) is further amended— 

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1 (1) by amending subsection (f) to read as fol2 lows: 

3 ‘‘(f)(1) Any employer who knowingly violates any 

4 standard, rule, or order promulgated under section 6, or 

5 of any regulation prescribed under this Act, and that viola6 tion caused or contributed to the death of any employee, 

7 shall, upon conviction, be punished by a fine in accordance 

8 with title 18, United States Code, or by imprisonment for 

9 not more than 10 years, or both, except that if the convic10 tion is for a violation committed after a first conviction 

11 of such person under this subsection or subsection (i), 

12 punishment shall be by a fine in accordance title 18, 

13 United States Code, or by imprisonment for not more than 

14 20 years, or by both. 

15 ‘‘(2) For the purpose of this subsection, the term ‘em16 ployer’ means, in addition to the definition contained in 

17 section 3, any officer or director.’’; 

18 (2) in subsection (g), by striking ‘‘fine of not 

19 more than $1,000 or by imprisonment for not more 

20 than six months,’’ and inserting ‘‘fine in accordance 

21 with title 18, United States Code, or by imprison22 ment for not more than 2 years,’’; 

23 (3) in subsection (h), by striking ‘‘fine of not 

24 more than $10,000, or by imprisonment for not 

25 more than six months,’’ and inserting ‘‘fine in acmstockstill on DSKH9S0YB1PROD with BILLS

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1 cordance with title 18, United States Code, or by 

2 imprisonment for not more than 5 years,’’; 

3 (4) by redesignating subsections (j) through 

4 (m) as subsections (k) through (n), respectively; and 

5 (5) by inserting after subsection (i) the fol6 lowing: 

7 ‘‘(j)(1) Any employer who knowingly violates any 

8 standard, rule, or order promulgated under section 6, or 

9 any regulation prescribed under this Act, and that viola10 tion causes or contributes to serious bodily harm to any 

11 employee but does not cause death to any employee, shall, 

12 upon conviction, be punished by a fine in accordance with 

13 title 18, United States Code, or by imprisonment for not 

14 more than 5 years, or by both, except that if the conviction 

15 is for a violation committed after a first conviction of such 

16 person under this subsection or subsection (e), punishment 

17 shall be by a fine in accordance with title 18, United 

18 States Code, or by imprisonment for not more than 10 

19 years, or by both. 

20 ‘‘(2) For the purpose of this subsection, the term ‘em21 ployer’ means, in addition to the definition contained in 

22 section 3, any officer or director. 

23 ‘‘(3) For purposes of this subsection, the term ‘seri24 ous bodily harm’ means bodily injury or illness that in25 volves— 

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1 ‘‘(A) a substantial risk of death; 

2 ‘‘(B) protracted unconsciousness; 

3 ‘‘(C) protracted and obvious physical disfigure4 ment; or 

5 ‘‘(D) protracted loss or impairment, either tem6 porary or permanent, of the function of a bodily 

7 member, organ, or mental faculty.’’. 

8 (b) JURISDICTION FOR PROSECUTION UNDER STATE

9 AND LOCAL CRIMINAL LAWS.—Section 17 (29 U.S.C. 

10 666) (as amended by section 705 and subsection (a)) is 

11 further amended by adding at the end the following: 

12 ‘‘(o) Nothing in this Act shall preclude a State or 

13 local law enforcement agency from conducting criminal 

14 prosecutions in accordance with the laws of such State or 

15 locality.’’. 

16 SEC. 707. PENALTIES. 

17 Section 17(n) (as redesignated by section 706(a)(4)) 

18 (29 U.S.C. 666(n)) is amended by adding at the end the 

19 following: ‘‘Pre-final order interest on such penalties shall 

20 begin to accrue on the date the party contests a citation 

21 issued under this Act, and shall end upon the issuance 

22 of the final order. Such pre-final order interest shall be 

23 calculated at the current underpayment rate determined 

24 by the Secretary of the Treasury pursuant to section 6621 

25 of the Internal Revenue Code of 1986, and shall be commstockstill on DSKH9S0YB1PROD with BILLS

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1 pounded daily. Post-final order interest shall begin to ac2 crue 30 days after the date a final order of the Commis3 sion or the court is issued, and shall be charged at the 

4 rate of 8 percent per year.’’. 

5 SEC. 708. EFFECTIVE DATE. 

6 (a) GENERAL RULE.—Except as provided for in sub7 section (b), this title and the amendments made by this 

8 title shall take effect not later than 90 days after the date 

9 of the enactment of this Act. 

10 (b) EXCEPTION FOR STATES AND POLITICAL SUB11 DIVISIONS.—A State that has a State plan approved under 

12 section 18 (29 U.S.C. 667) shall amend its State plan to 

13 conform with the requirements of this Act and the amend14 ments made by this Act not later than 12 months after 

15 the date of the enactment of this Act. The Secretary of 

16 Labor may extend the period for a State to make such 

17 amendments to its State plan by not more than 12 

18 months, if the State’s legislature is not in session during 

19 the 12-month period beginning with the date of the enact20 ment of this Act. Such amendments to the State plan shall 

21 take effect not later than 90 days after the adoption of 

22 such amendments by such State. 

Æ 

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