II 

113TH CONGRESS 

1ST SESSION S. 805 

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

empower workers to raise safety concerns, prevent future mine and 

other workplace tragedies, and establish rights of families of victims 

of workplace accidents, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 24, 2013 

Mr. ROCKEFELLER (for himself, Mr. MANCHIN, Mr. HARKIN, and Mrs. MURRAY) 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, and 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 2013’’. 


smartinez on DSK6TPTVN1PROD with BILLS
2 

•S 805 IS

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. Findings. 

Sec. 3. 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. Procedures and criteria for determining a pattern of violations. 

Sec. 203. Injunctive authority. 

Sec. 204. Revocation of approval of plans. 

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

mine 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 and additional technological improvements. 

Sec. 504. Technology related to respirable dust. 

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

Sec. 506. Additional training. 

Sec. 507. Brookwood-Sago mine safety grants. 

Sec. 508. Certification of personnel. 

Sec. 509. Electronic records requirement. 

TITLE VI—ADDITIONAL MINE SAFETY PROVISIONS 

Sec. 601. Definitions. 

Sec. 602. Assistance to States. 

Sec. 603. Black lung medical reports. 


smartinez on DSK6TPTVN1PROD with BILLS
3 

•S 805 IS

Sec. 604. Study on workforce needs. 

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

Sec. 606. Double encumbrance; succession plan. 

TITLE VII—AMENDMENTS TO THE OCCUPATIONAL SAFETY AND 

HEALTH ACT OF 1970 

Sec. 701. Coverage of public employees. 

Sec. 702. Enhanced protections from retaliation. 

Sec. 703. Victims’ rights. 

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

and procedures for a stay. 

Sec. 705. Conforming amendments. 

Sec. 706. Civil penalties. 

Sec. 707. Criminal penalties. 

Sec. 708. Penalties. 

Sec. 709. Effective date. 

1 SEC. 2. FINDINGS. 

2 Congress finds the following: 

3 (1) Employers have an obligation to ensure a 

4 safe and healthy work environment for all employ5 ees. 

6 (2) To help fulfill that obligation, Congress 

7 must conduct oversight of the executive agencies re8 sponsible for enforcing workplace safety laws and 

9 must revise and update Federal laws when necessary 

10 to protect the safety and health of the workforce of 

11 the United States. 

12 (3) In response to several mining tragedies in 

13 early 2006, Congress quickly passed the most sweep14 ing changes to mine safety laws in 30 years. The 

15 Mine Improvement and New Emergency Response 

16 Act of 2006 (Public Law 109–236, 120 Stat. 493), 


smartinez on DSK6TPTVN1PROD with BILLS
4 

•S 805 IS

1 also known as the ‘‘MINER Act’’, was signed into 

2 law on June 15, 2006. 

3 (4) As a result of the MINER Act— 

4 (A) coal miners are entitled to at least 2 

5 hours of readily accessible oxygen supplies for 

6 use in emergencies and additional oxygen sup7 plies every 30 minutes along escape routes; 

8 (B) mines are required to implement emer9 gency response plans and have 2 rescue teams 

10 located within one hour from the mine; 

11 (C) mine operators are subjected to pen12 alties for failing to quickly notify the Mine 

13 Safety and Health Administration about acci14 dents; and 

15 (D) a new grant program was created to 

16 provide mine safety training. 

17 (5) Although the MINER Act made significant 

18 improvements to mine rescue capabilities, Congress 

19 was again reminded of the need to continually im20 prove and vigorously enforce our Federal mine safe21 ty laws when, on April 5, 2010, an explosion ripped 

22 through the Upper Big Branch Mine in Montcoal, 

23 West Virginia, killing 29 brave West Virginia coal 

24 miners and seriously injuring another. This was the 


smartinez on DSK6TPTVN1PROD with BILLS
5 

•S 805 IS

1 worst coal mining disaster in the United States in 

2 nearly 40 years. 

3 (6) We must never forget those who have been 

4 impacted by this tragedy—family members, friends, 

5 coworkers, loved ones, and most importantly, the in6 dividuals who perished in the Upper Big Branch ex7 plosion: Carl ‘‘Pee Wee’’ Acord, Jason Matthew At8 kins, Christopher Lee Bell, Sr., Gregory Steven 

9 Brock, Kenneth A. Chapman, Sr., Robert Eugene 

10 Clark, Cory Davis, Charles Timothy Davis, Michael 

11 Lee Elswick, William Ildon Griffith, Steven J. 

12 ‘‘Smiley’’ Harrah, Edward ‘‘Dean’’ Jones, Richard 

13 Keith Lane, William Roosevelt Lynch, Joe Marcum, 

14 Ronald Lee Maynor, Nicolas D. McCroskey, James 

15 ‘‘Eddie’’ Mooney, Adam K. Morgan, Rex Lane 

16 Mullins, Joshua Scott Napper, Howard ‘‘Boone’’ 

17 Payne, Jr., Dillard Earl ‘‘Dewey’’ Persinger, Joel R. 

18 ‘‘Jody’’ Price, Gary Wayne Quarles, Deward Allan 

19 Scott, Grover Dale Skeens, Benny Ray Willingham, 

20 and Ricky L. Workman. Another miner, James 

21 Woods, was seriously injured in the explosion and a 

22 second survivor, Tim Blake, has been credited with 

23 heroically attempting to save the lives of his fellow 

24 miners by applying emergency breathing devices to 

25 them while they were unconscious. 


smartinez on DSK6TPTVN1PROD with BILLS
6 

•S 805 IS

1 (7) Five Federal, State, and independent enti2 ties have conducted investigations into the Upper 

3 Big Branch disaster. Together, these reports con4 clude that the Upper Big Branch disaster was a pre5 ventable explosion caused by a failure of the oper6 ator to follow known safety standards, including 

7 those that are intended to prevent large-scale explo8 sions. 

9 (8) The United States Attorney for the South10 ern District of West Virginia has launched a crimi11 nal investigation into the Upper Big Branch dis12 aster, which to date has resulted in the conviction of, 

13 or guilty pleas from, 4 employees or former employ14 ees of the Upper Big Branch mine. 

15 (9) In the 2 years following the Upper Big 

16 Branch disaster, Congress has held a total of 9 

17 hearings on the disaster and on mine safety gen18 erally. 

19 (10) Congress enacted, as part of the Dodd20 Frank Wall Street Reform and Consumer Protection 

21 Act (Public Law 111–203, 124 Stat. 1376), an 

22 amendment requiring publicly traded mining compa23 nies to disclose serious safety violations to share24 holders, the public, and the Securities and Exchange 

25 Commission. 


smartinez on DSK6TPTVN1PROD with BILLS
7 

•S 805 IS

1 (11) Congress appropriated $22,000,000 

2 through the Supplemental Appropriations Act, 2010 

3 (Public Law 111–212) to reduce the backlog of ap4 peals at the Federal Mine Safety and Health Review 

5 Commission, investigate the Upper Big Branch dis6 aster, and purchase emergency response equipment. 

7 During the year that this funding was available, the 

8 Federal Mine Safety and Health Review Commission 

9 was able to hire 6 additional judges and support 

10 staff and, along with the Department of Labor, was 

11 able to dispose of 11,643 cases, including 6,924 

12 cases that had been specifically targeted for backlog 

13 reduction. 

14 (12) In September 2010, the Mine Safety and 

15 Health Administration issued an emergency tem16 porary standard that strengthened rock dusting re17 quirements to reduce the likelihood and severity of 

18 explosions in underground mines. In June 2011, the 

19 agency issued final regulations requiring mine opera20 tors to maintain incombustible content of combined 

21 dust of at least 80 percent in underground mines. 

22 (13) Since April 2010, the Mine Safety and 

23 Health Administration has increased its enforcement 

24 by implementing impact inspections that target vio25 lations at unsafe mines with poor compliance history 


smartinez on DSK6TPTVN1PROD with BILLS
8 

•S 805 IS

1 or specific safety concerns. As of March 2013, the 

2 Administration had conducted 579 impact inspec3 tions, resulting in 10,036 citations, 946 orders, and 

4 43 safeguards. 

5 (14) The Mine Safety and Health Administra6 tion has also— 

7 (A) revised the screening criteria for plac8 ing mines onto pattern of violations status 

9 under section 104(e) of the Federal Mine Safe10 ty and Health Act of 1977 (30 U.S.C. 814(e)), 

11 which subjects unsafe mines to increased en12 forcement and oversight; 

13 (B) created a new online tool to allow op14 erators, miners, and the public to monitor 

15 whether a mine could be subject to a pattern of 

16 violations; and 

17 (C) finalized new regulations that will 

18 eliminate regulatory loopholes that have allowed 

19 unsafe mines to avoid being placed onto pattern 

20 of violations status altogether. 

21 (15) In April 2011, for the first time in history 

22 since the Federal Mine Safety and Health Act of 

23 1977 (30 U.S.C. 801 et seq.) was enacted, the Mine 

24 Safety and Health Administration placed 2 mines 

25 onto pattern of violations status, and as of NovemVerDate Mar 15 2010 00:29 Apr 30, 2013 Jkt 029200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S805.IS S805

smartinez on DSK6TPTVN1PROD with BILLS
9 

•S 805 IS

1 ber 2012, had issued 98 letters notifying mines that 

2 they faced a potential pattern of violations, which is 

3 the regulatory precursor to being placed onto pat4 tern of violations status. 

5 (16) The entities charged with investigating the 

6 Upper Big Branch disaster have made several rec7 ommendations to improve the safety of miners that 

8 can only be accomplished through the legislative 

9 process. At this time, Congress has not passed com10 prehensive mine safety legislation that is critical to 

11 improving the long-term structure of mine safety ef12 forts and providing the maximum level of protection 

13 for our Nation’s miners and their families. 

14 SEC. 3. REFERENCES. 

15 Except in title VII and as otherwise expressly pro16 vided, whenever in this Act an amendment is expressed 

17 as an amendment to a section or other provision, the ref18 erence shall be considered to be made to a section or other 

19 provision of the Federal Mine Safety and Health Act of 

20 1977 (30 U.S.C. 801 et seq.). 


smartinez on DSK6TPTVN1PROD with BILLS
10 

•S 805 IS

1 TITLE I—ADDITIONAL INSPEC2 TION AND INVESTIGATION 

3 AUTHORITY 

4 SEC. 101. INDEPENDENT ACCIDENT INVESTIGATIONS. 

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

6 813(b)) is amended by striking ‘‘(b) For the purpose’’ and 

7 inserting the following: 

8 ‘‘(b) ACCIDENT INVESTIGATIONS.— 

9 ‘‘(1) IN GENERAL.—For all accident investiga10 tions under this Act, the Secretary shall— 

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

12 ‘‘(B)(i) determine whether there were vio13 lations of law, mandatory health or safety 

14 standards, or other requirements; and 

15 ‘‘(ii) if there is evidence of conduct that 

16 may constitute a violation of Federal criminal 

17 law, refer such evidence to the Attorney General 

18 of the United States; and 

19 ‘‘(C) make recommendations to avoid any 

20 recurrence. 

21 ‘‘(2) INDEPENDENT ACCIDENT INVESTIGA22 TIONS.— 

23 ‘‘(A) IN GENERAL.—There shall be, in ad24 dition to an accident investigation under para25 graph (1), an independent investigation by an 


smartinez on DSK6TPTVN1PROD with BILLS
11 

•S 805 IS

1 independent investigation panel (referred to in 

2 this subsection as the ‘Panel’) appointed under 

3 subparagraph (B) for— 

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

5 deaths; or 

6 ‘‘(ii) any accident that is of such se7 verity or scale for potential or actual harm 

8 that, in the opinion of the Secretary of 

9 Health and Human Services, the accident 

10 merits an independent investigation. 

11 ‘‘(B) APPOINTMENT.— 

12 ‘‘(i) IN GENERAL.—As soon as prac13 ticable after an accident described in sub14 paragraph (A), the Secretary of Health 

15 and Human Services shall appoint 5 mem16 bers for the Panel required under this 

17 paragraph from among individuals who 

18 have expertise in accident investigations, 

19 mine engineering, or mine safety and 

20 health that is relevant to the particular in21 vestigation. 

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

23 include, and be chaired by, a representative 

24 from the Office of Mine Safety and Health 

25 Research, of the National Institute for OcVerDate Mar 15 2010 00:29 Apr 30, 2013 Jkt 029200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S805.IS S805

smartinez on DSK6TPTVN1PROD with BILLS
12 

•S 805 IS

1 cupational Safety and Health (referred to 

2 in this subsection as ‘NIOSH’). 

3 ‘‘(iii) CONFLICTS OF INTEREST.— 

4 Panel members, and staff and consultants 

5 assisting the Panel with an investigation, 

6 shall be free from conflicts of interest with 

7 regard to the investigation, and be subject 

8 to the same standards of ethical conduct 

9 for persons employed by the Secretary. 

10 ‘‘(iv) COMPOSITION.—The Secretary 

11 of Health and Human Services— 

12 ‘‘(I) shall appoint as members of 

13 the Panel— 

14 ‘‘(aa) 1 operator of a mine 

15 or individual representing mine 

16 operators; and 

17 ‘‘(bb) 1 member of a labor 

18 organization or other representa19 tive of miners; and 

20 ‘‘(II) shall not appoint more than 

21 1 of either type of individuals de22 scribed in items (aa) and (bb) as 

23 members of the Panel. 

24 ‘‘(v) STAFF AND EXPENSES.—The Di25 rector of NIOSH shall designate NIOSH 


smartinez on DSK6TPTVN1PROD with BILLS
13 

•S 805 IS

1 staff to facilitate the work of the Panel. 

2 The Director may accept as staff personnel 

3 on detail from other Federal agencies or 

4 may re-employ annuitants. The detail of 

5 personnel under this paragraph may be on 

6 a non-reimbursable basis, and such detail 

7 shall be without interruption or loss of civil 

8 service status or privilege. The Director of 

9 NIOSH shall have the authority to procure 

10 on behalf of the Panel such materials, sup11 plies, or services, including technical ex12 perts, as requested in writing by a majority 

13 of the Panel. 

14 ‘‘(vi) COMPENSATION AND TRAVEL.— 

15 All members of the Panel who are officers 

16 or employees of the United States shall 

17 serve without compensation in addition to 

18 that received for their services as officers 

19 or employees of the United States. Each 

20 Panel member who is not an officer or em21 ployee of the United States shall be com22 pensated at a rate equal to the daily equiv23 alent of the annual rate of basic pay pre24 scribed for level IV of the Executive Sched25 ule under section 5315 of title 5, United 


smartinez on DSK6TPTVN1PROD with BILLS
14 

•S 805 IS

1 States Code, for each day (including travel 

2 time) during which such member is en3 gaged in the performance of duties of the 

4 Panel. The members of the Panel shall be 

5 allowed travel expenses, including per diem 

6 in lieu of subsistence, at rates authorized 

7 for employees of agencies under subchapter 

8 1 of chapter 57 of title 5, United States 

9 Code, while away from their homes or reg10 ular places of business in the performance 

11 of services for the Panel. 

12 ‘‘(C) DUTIES.—The Panel shall— 

13 ‘‘(i) assess and identify any factors 

14 that caused the accident, including defi15 ciencies in safety management systems, 

16 regulations, enforcement, industry prac17 tices or guidelines, or organizational fail18 ures; 

19 ‘‘(ii) identify and evaluate any con20 tributing actions or inactions of— 

21 ‘‘(I) the operator; 

22 ‘‘(II) any contractors or other 

23 persons engaged in mining-related 

24 functions at the site; 


smartinez on DSK6TPTVN1PROD with BILLS
15 

•S 805 IS

1 ‘‘(III) any State agency with 

2 oversight responsibilities; 

3 ‘‘(IV) any agency or office within 

4 the Department of Labor; 

5 ‘‘(V) the Federal Mine Safety 

6 and Health Review Commission; or 

7 ‘‘(VI) any other person or entity 

8 (including equipment manufacturers); 

9 ‘‘(iii) review the determinations and 

10 recommendations made by the Secretary 

11 under paragraph (1); 

12 ‘‘(iv) prepare a report that— 

13 ‘‘(I) includes the findings regard14 ing the causal factors described in 

15 clauses (i) and (ii); 

16 ‘‘(II) identifies any strengths and 

17 weaknesses in the Secretary’s inves18 tigation; and 

19 ‘‘(III) includes recommendations, 

20 including interim recommendations 

21 where appropriate, to industry, labor 

22 organizations, State and Federal 

23 agencies, or Congress, regarding pol24 icy, regulatory, enforcement, adminis25 trative, or other changes, that, in the 


smartinez on DSK6TPTVN1PROD with BILLS
16 

•S 805 IS

1 judgment of the Panel, would prevent 

2 a recurrence at other mines; and 

3 ‘‘(v) publish such findings and rec4 ommendations (excluding any portions 

5 which the Attorney General requests that 

6 the Secretary withhold in relation to a 

7 criminal referral) and hold public meetings 

8 to inform the mining community and fami9 lies of affected miners of the Panel’s find10 ings and recommendations. 

11 ‘‘(D) HEARINGS; APPLICABILITY OF CER12 TAIN FEDERAL LAW.—The Panel shall have the 

13 authority to conduct public hearings or meet14 ings, but shall not be subject to the Federal Ad15 visory Committee Act (5 U.S.C. App.). All pub16 lic hearings of the Panel shall be subject to the 

17 requirements under section 552b of title 5, 

18 United States Code. 

19 ‘‘(E) MEMORANDUM OF UNDER20 STANDING.—Not later than 90 days after the 

21 date of enactment of the Robert C. Byrd Mine 

22 and Workplace Safety and Health Act of 2013, 

23 the Secretary of Labor and the Secretary of 

24 Health and Human Services shall conclude and 


smartinez on DSK6TPTVN1PROD with BILLS
17 

•S 805 IS

1 publically issue a memorandum of under2 standing that— 

3 ‘‘(i) outlines administrative arrange4 ments which will facilitate a coordination 

5 of efforts between the Secretary of Labor 

6 and the Panel, ensures that the Secretary’s 

7 investigation under paragraph (1) is not 

8 delayed or otherwise compromised by the 

9 activities of the Panel, and establishes a 

10 process to resolve any conflicts between 

11 such investigations; 

12 ‘‘(ii) ensures that Panel members or 

13 staff will be able to participate in inves14 tigation activities (such as mine inspections 

15 and interviews) related to the Secretary of 

16 Labor’s investigation and will have full ac17 cess to documents that are assembled or 

18 produced in such investigation, and en19 sures that the Secretary of Labor will 

20 make available to the Panel all of the au21 thority provided to such Secretary under 

22 this section, including subpoena authority, 

23 to obtain information and witnesses which 

24 may be requested by such Panel; and 


smartinez on DSK6TPTVN1PROD with BILLS
18 

•S 805 IS

1 ‘‘(iii) establishes such other arrange2 ments as are necessary to implement this 

3 paragraph. 

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

5 days after the date of enactment of the Robert 

6 C. Byrd Mine and Workplace Safety and 

7 Health Act of 2013, the Secretary of Health 

8 and Human Services shall establish procedures 

9 to ensure the consistency and effectiveness of 

10 Panel investigations. In establishing such proce11 dures, such Secretary shall consult with inde12 pendent safety investigation agencies, sectors of 

13 the mining industry, representatives of miners, 

14 families of miners involved in fatal accidents, 

15 State mine safety agencies, and mine rescue or16 ganizations. Such procedures shall include— 

17 ‘‘(i) authority for the Panel to use evi18 dence, samples, interviews, data, analyses, 

19 findings, or other information gathered by 

20 the Secretary of Labor, as the Panel deter21 mines valid; 

22 ‘‘(ii) provisions to ensure confiden23 tiality if requested by any witness, to the 

24 extent permitted by law, and prevent conVerDate Mar 15 2010 00:29 Apr 30, 2013 Jkt 029200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S805.IS S805

smartinez on DSK6TPTVN1PROD with BILLS
19 

•S 805 IS

1 flicts of interest in witness representation; 

2 and 

3 ‘‘(iii) provisions for preservation of 

4 public access to the Panel’s records 

5 through the Secretary of Health and 

6 Human Services. 

7 ‘‘(G) SUBPOENAS; CONTEMPT; WIT8 NESSES.— 

9 ‘‘(i) HEARINGS AND SUBPOENA AU10 THORITY.—For the purpose of carrying 

11 out any investigation of any accident or 

12 other occurrence relating to health or safe13 ty in a coal or other mine under this para14 graph, the Director of NIOSH shall, at the 

15 request of a majority of the Panel or upon 

16 the Director’s own initiative sign, and 

17 issue subpoenas for the attendance and 

18 testimony of witnesses and the production 

19 of relevant papers, books, and documents, 

20 and administer oaths. Witnesses sum21 moned shall be paid the same fees and 

22 mileage that are paid witnesses in the 

23 courts of the United States. 

24 ‘‘(ii) CONTUMACY.—In case of contu25 macy or refusal to obey a subpoena served 


smartinez on DSK6TPTVN1PROD with BILLS
20 

•S 805 IS

1 upon any person under this subparagraph, 

2 the district court of the United States for 

3 any district in which such person is found, 

4 resides, or transacts business, upon appli5 cation by the United States and after no6 tice to such person, shall have jurisdiction 

7 to issue an order requiring such person to 

8 appear and give testimony before the Di9 rector of NIOSH or Panel, or to appear 

10 and produce documents before the Director 

11 or Panel, or both, and any failure to obey 

12 such order of the court may be punished 

13 by such court as a contempt thereof. 

14 ‘‘(iii) ADDITIONAL INVESTIGATIVE AU15 THORITY.—In carrying out inspections and 

16 investigations under this paragraph, the 

17 Director of NIOSH or the Panel, and the 

18 staff of and attorneys representing the Di19 rector or Panel, are authorized to question 

20 any individual privately. Under this sub21 paragraph, any individual who is willing to 

22 speak with or provide a statement to the 

23 Director or Panel, or the staff or attorneys 

24 of the Director or Panel, may do so with25 out the presence, involvement, or knowlVerDate Mar 15 2010 00:29 Apr 30, 2013 Jkt 029200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\S805.IS S805

smartinez on DSK6TPTVN1PROD with BILLS
21 

•S 805 IS

1 edge of the operator or the operator’s 

2 agents or attorneys. The Director or Panel 

3 shall keep the identity of an individual pro4 viding such a statement confidential to the 

5 extent permitted by law. Nothing in this 

6 paragraph prevents any individual from 

7 being represented by that individual’s per8 sonal attorney or other representative. 

9 ‘‘(H) AUTHORIZATION OF APPROPRIA10 TIONS.—There is authorized to be appropriated 

11 to carry out this subsection such sums as may 

12 be necessary. 

13 ‘‘(3) POWERS AND PROCESSES.—For the pur14 pose’’. 

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

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

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

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

20 SEC. 102. SUBPOENA AUTHORITY AND MINER RIGHTS DUR21 ING INSPECTIONS AND INVESTIGATIONS. 

22 Section 103(b) (as amended by section 101(a)) (30 

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

24 the following: 


smartinez on DSK6TPTVN1PROD with BILLS
22 

•S 805 IS

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

2 of enabling the Secretary to perform any of the 

3 functions under this Act, the Secretary, or the Sec4 retary’s designee, may sign and issue subpoenas for 

5 the attendance and testimony of witnesses and the 

6 production of information, including all relevant 

7 data, papers, books, documents, and items of phys8 ical evidence, and administer oaths. Witnesses sum9 moned shall be paid the same fees that are paid wit10 nesses in the courts of the United States. In car11 rying out inspections and investigations under this 

12 subsection, authorized representatives of the Sec13 retary and attorneys representing the Secretary are 

14 authorized to question any individual privately. 

15 Under this section, any individual who is willing to 

16 speak with or provide a statement to such author17 ized representatives or attorneys representing the 

18 Secretary may do so without the presence, involve19 ment, or knowledge of the operator or the operator’s 

20 agents or attorneys. The Secretary shall keep the 

21 identity of an individual providing such a statement 

22 confidential to the extent permitted by law. Nothing 

23 in this paragraph prevents any individual from being 

24 represented by that individual’s personal attorney or 

25 other representative.’’. 


smartinez on DSK6TPTVN1PROD with BILLS
23 

•S 805 IS

1 SEC. 103. DESIGNATION OF MINER REPRESENTATIVE. 

2 Section 103(f) (30 U.S.C. 813(f)) is amended by in3 serting before the last sentence the following: ‘‘If any 

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

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

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

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

8 representative. If any miner is not currently working in 

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

10 would be currently working in such mine but for such acci11 dent, such miner may designate such a representative. A 

12 representative of miners shall have the right to participate 

13 in any accident investigation the Secretary initiates pursu14 ant to subsection (b), including the right to participate 

15 in investigative interviews and to review all relevant pa16 pers, books, documents and records produced in connec17 tion with the accident investigation, unless the Secretary, 

18 in consultation with the Attorney General, excludes such 

19 representative from the investigation on the grounds that 

20 inclusion would interfere with or adversely impact a crimi21 nal investigation that is pending or under consideration.’’. 

22 SEC. 104. ADDITIONAL AMENDMENTS RELATING TO IN23 SPECTIONS, INVESTIGATIONS, AND RECORD24 KEEPING. 

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

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


smartinez on DSK6TPTVN1PROD with BILLS
24 

•S 805 IS

1 sentence the following: ‘‘Such inspections shall be con2 ducted during the various shifts and days of the week dur3 ing which miners are normally present in the mine to en4 sure that the protections of this Act are afforded to all 

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

6 section of a mine occurs during a shift on which a mecha7 nized mining unit is producing, or customarily produces, 

8 coal on such section, then such inspection shall be con9 ducted while such unit is producing coal at a rate that 

10 is reasonably consistent with the average rate of produc11 tion at the mine during the previous quarter.’’. 

12 (b) INCREASED TARGETED INSPECTIONS.—Section 

13 103(a) (as amended by subsection (a)) is further amended 

14 by inserting after the fifth sentence (as inserted by such 

15 subsection) the following: ‘‘If the Secretary determines 

16 that the operator has not properly maintained a record 

17 of all violations of this Act (including any mandatory 

18 health or safety standard or regulation promulgated under 

19 this Act) for a mine, the Secretary shall provide, during 

20 the 3-month period following such determination, a min21 imum of one spot inspection by his authorized representa22 tive of all or part of such mine, during every 15 working 

23 days and at irregular intervals. Such inspections shall be 

24 in addition to any other inspections required under this 

25 section.’’. 


smartinez on DSK6TPTVN1PROD with BILLS
25 

•S 805 IS

1 (c) INJURY AND ILLNESS REPORTING.—Section 

2 103(d) (30 U.S.C. 813(d)) is amended by striking the last 

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

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

5 include man-hours worked and occupational injuries and 

6 illnesses, and shall be maintained separately for each mine 

7 and be reported at a frequency determined by the Sec8 retary, but at not less than annually. Each operator shall 

9 be responsible for reporting on all miners working at such 

10 mine regardless of their employer, except that independent 

11 contractors (within the meaning of section 3(d)) shall only 

12 be responsible for reporting on miners in their employ or 

13 under their direction or authority.’’. 

14 (d) ORDERS FOLLOWING AN ACCIDENT.—Section 

15 103(k) (30 U.S.C. 813(k)) is amended by striking ‘‘, when 

16 present,’’. 

17 (e) CONFLICT OF INTEREST IN THE REPRESENTA18 TION OF MINERS.—Section 103(a) (30 U.S.C. 813(a)) (as 

19 amended by subsections (a) and (b) is further amended 

20 by adding at the end the following: ‘‘During inspections 

21 and investigations under this section, and during any liti22 gation under this Act, no attorney shall represent or pur23 port to represent both the operator of a coal or other mine 

24 and any other individual, unless such individual has know25 ingly and voluntarily waived all actual and reasonably 


smartinez on DSK6TPTVN1PROD with BILLS
26 

•S 805 IS

1 foreseeable conflicts of interest resulting from such rep2 resentation. The Secretary is authorized to take such ac3 tions as the Secretary considers appropriate to ascertain 

4 whether such individual has knowingly and voluntarily 

5 waived all such conflicts of interest. If the Secretary finds 

6 that such an individual cannot be represented adequately 

7 by such an attorney due to such conflicts of interest, the 

8 Secretary may petition the appropriate United States Dis9 trict Court which shall have jurisdiction to disqualify such 

10 attorney as counsel to such individual in the matter. The 

11 Secretary may make such a motion as part of an ongoing 

12 related civil action or as a miscellaneous action.’’. 

13 (f) ELECTRONIC DATABASE.—Section 103 (30 

14 U.S.C. 813) is amended by adding at the end the fol15 lowing: 

16 ‘‘(l) ELECTRONIC DATABASE.—The Secretary shall 

17 establish and maintain a publicly available electronic data18 base containing current and historical data on the safety 

19 records of each coal or other mine. Such database shall 

20 be user-friendly and searchable, and shall have the ability 

21 to provide aggregate data for each mine, each operator, 

22 and each controller of a mine and the ability to compare 

23 safety data between mines, operators, and controllers.’’. 


smartinez on DSK6TPTVN1PROD with BILLS
27 

•S 805 IS

1 (g) FEDERAL-STATE COORDINATION.—Section 103 

2 (as amended by subsection (f)) is further amended by add3 ing at the end the following: 

4 ‘‘(m) FEDERAL-STATE COORDINATION.— 

5 ‘‘(1) IN GENERAL.—To the maximum extent 

6 practicable, when the Secretary identifies a mine as 

7 having a significant or persistent safety or health 

8 problem— 

9 ‘‘(A) an authorized representative of the 

10 Secretary shall request a meeting with the ap11 propriate State-level regulator to share the con12 cerns of the Secretary when the Secretary de13 termines that such actions would improve con14 ditions of the mine; and 

15 ‘‘(B) the Secretary and the State-level reg16 ulator may develop a joint plan designed to cor17 rect the identified problem. 

18 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in 

19 this subsection shall be construed to require the Sec20 retary to take action that could delay or compromise 

21 any civil or criminal enforcement action or pro22 ceeding.’’. 

23 (h) OUTSIDE EXPERTS IN INVESTIGATIONS.—Sec24 tion 112 (30 U.S.C. 822) is amended— 


smartinez on DSK6TPTVN1PROD with BILLS
28 

•S 805 IS

1 (1) by striking ‘‘Except as provided’’ and in2 serting the following: 

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

4 as provided’’; and 

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

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

7 Attorney General shall designate 1 or more full-time em8 ployees with expertise in the mining industry to coordinate 

9 with the Department of Labor and assist United States 

10 attorneys in the investigation and prosecution of criminal 

11 violations under this Act.’’. 

12 TITLE II—ENHANCED 

13 ENFORCEMENT AUTHORITY 

14 SEC. 201. SIGNIFICANT AND SUBSTANTIAL VIOLATIONS. 

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

17 (1) in the first sentence— 

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

19 safety standard’’ and inserting ‘‘any provision 

20 of this Act, including any mandatory health or 

21 safety standard or regulation promulgated 

22 under this Act’’; and 

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

24 safety standards’’ and inserting ‘‘such proviVerDate Mar 15 2010 00:29 Apr 30, 2013 Jkt 029200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\S805.IS S805

smartinez on DSK6TPTVN1PROD with BILLS
29 

•S 805 IS

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

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

4 mandatory health or safety standard’’ and inserting 

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

6 health or safety standard or regulation promulgated 

7 under this Act,’’; and 

8 (3) by inserting after the first sentence the fol9 lowing: ‘‘For purposes of this Act, a violation of a 

10 provision of this Act, including any mandatory 

11 health or safety standard or regulation promulgated 

12 under this Act, is of such nature as could signifi13 cantly and substantially contribute to the cause and 

14 effect of a safety or health hazard if there is a rea15 sonable possibility that such violation could result in 

16 injury, illness, or death.’’. 

17 SEC. 202. PROCEDURES AND CRITERIA FOR DETERMINING 

18 A PATTERN OF VIOLATIONS. 

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

20 ‘‘(4) The criteria for determining when a pat21 tern of violations of mandatory health or safety 

22 standards exists, and the requirements for the 

23 issuance and termination of notice of a pattern of 

24 violations, shall be the criteria and requirements in 

25 the regulations promulgated by the Secretary under 


smartinez on DSK6TPTVN1PROD with BILLS
30 

•S 805 IS

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

2 Regulations, as published on January 23, 2013 (78 

3 Federal Register 5073 through 5074).’’. 

4 SEC. 203. INJUNCTIVE AUTHORITY. 

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

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

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

8 of the Secretary constitutes a continuing hazard to the 

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

10 or of mandatory health or safety standards or regulations 

11 under this Act.’’. 

12 SEC. 204. REVOCATION OF APPROVAL OF PLANS. 

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

14 (1) by redesignating subsection (d) as sub15 section (e); and 

16 (2) by inserting after subsection (c) the fol17 lowing: 

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

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

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

21 that was approved by the Secretary under this Act 

22 is based on inaccurate information or that cir23 cumstances that existed when such plan was ap24 proved have materially changed and that continued 

25 operation of such mine under such plan constitutes 


smartinez on DSK6TPTVN1PROD with BILLS
31 

•S 805 IS

1 a hazard to the safety or health of miners, the Sec2 retary shall revoke the approval of such program or 

3 plan. 

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

5 of the approval of a program or plan under sub6 section (a), the Secretary may immediately issue an 

7 order requiring the operator to cause all persons, ex8 cept those persons referred to in section 104(c), to 

9 be withdrawn from such mine, and to be prohibited 

10 from entering such mine, until the operator has sub11 mitted and the Secretary has approved a new plan.’’. 

12 SEC. 205. CHALLENGING A DECISION TO APPROVE, MOD13 IFY, OR REVOKE A COAL OR OTHER MINE 

14 PLAN. 

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

16 (30 U.S.C. 815(e)) is amended by adding at the end the 

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

18 the Secretary’s decision regarding whether to approve, 

19 modify, or revoke a coal or other mine plan under this 

20 Act, the Commission and the courts shall affirm the Sec21 retary’s decision unless the challenging party establishes 

22 that such decision was arbitrary, capricious, an abuse of 

23 discretion, or otherwise not in accordance with law.’’. 


smartinez on DSK6TPTVN1PROD with BILLS
32 

•S 805 IS

1 TITLE III—PENALTIES 

2 SEC. 301. CIVIL PENALTIES. 

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

4 (30 U.S.C. 820(a)(1)) is amended— 

5 (1) by inserting ‘‘including any regulation pro6 mulgated under this Act,’’ after ‘‘this Act,’’; and 

7 (2) by striking ‘‘violation.’’ and inserting ‘‘viola8 tion, except that, in the case of a significant and 

9 substantial violation, the penalty shall be not more 

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

11 (b) INCREASED CIVIL PENALTIES.—Section 110(b) 

12 (30 U.S.C. 820(b)) is amended by adding at the end the 

13 following— 

14 ‘‘(3) The operator of a coal or other mine may 

15 be assessed a civil penalty of not more than 

16 $220,000 by the Secretary for— 

17 ‘‘(A) any change in ventilation in a coal or 

18 other mine, where such ventilation system or 

19 control is required by a ventilation plan, safety 

20 standard, or order, that is made without prior 

21 approval from the Secretary; 

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

23 safety standard requiring rock dusting; 


smartinez on DSK6TPTVN1PROD with BILLS
33 

•S 805 IS

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

2 section 101 regarding providing advance notice 

3 of an inspection; 

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

5 safety standard requiring examinations of work 

6 areas in an underground coal mine; or 

7 ‘‘(E) a failure to keep the records required 

8 for the mine by the Secretary in accordance 

9 with this Act. 

10 ‘‘(4) Notwithstanding any other provision of 

11 this Act, an operator of a coal or other mine that 

12 is in pattern of violations status under section 

13 104(e) shall be assessed an increased civil penalty 

14 for any violation of this Act, including any manda15 tory health or safety standard or regulation promul16 gated under this Act. Such increased penalty shall 

17 be twice the amount that would otherwise be as18 sessed for the violation under this Act, including the 

19 regulations promulgated under this Act, subject to 

20 the maximum civil penalty established for the viola21 tion under this Act.’’. 

22 (c) CIVIL PENALTY FOR RETALIATION.—Section 

23 110(a) (30 U.S.C. 820(a)) is further amended— 

24 (1) by redesignating paragraph (4) as para25 graph (5); and 


smartinez on DSK6TPTVN1PROD with BILLS
34 

•S 805 IS

1 (2) by inserting after paragraph (3) the fol2 lowing: 

3 ‘‘(4) If any person violates section 105(c), the Sec4 retary shall propose, and the Commission shall assess, a 

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

6 $100,000 for the first occurrence of such violation, and 

7 not less than $20,000 or more than $200,000 for any sub8 sequent violation, during any 3-year period.’’. 

9 SEC. 302. CIVIL AND CRIMINAL LIABILITY OF OFFICERS, DI10 RECTORS, AND AGENTS. 

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

12 as follows: 

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

14 DIRECTORS, AND AGENTS.—Whenever an operator vio15 lates a provision of this Act, including any mandatory 

16 health or safety standard or regulation promulgated under 

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

18 with any order issued under this Act or any order incor19 porated in a final decision issued under this Act, any di20 rector, officer, or agent of such operator who knowingly 

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

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

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

24 be subject to the same civil penalties, fines, and imprisonVerDate Mar 15 2010 00:29 Apr 30, 2013 Jkt 029200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 E:\BILLS\S805.IS S805

smartinez on DSK6TPTVN1PROD with BILLS
35 

•S 805 IS

1 ment that may be imposed upon a person under this sec2 tion.’’. 

3 SEC. 303. CRIMINAL PENALTIES. 

4 (a) INTENT REQUIREMENTS FOR CRIMINAL PEN5 ALTY STANDARDS.—Section 110(d) (30 U.S.C. 820(d)) is 

6 amended— 

7 (1) by striking ‘‘willfully’’ and inserting ‘‘know8 ingly’’; 

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

10 for not more than one year’’ and inserting 

11 ‘‘$1,000,000, or by imprisonment for not more than 

12 5 years’’; and 

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

14 for not more than five years’’ and inserting 

15 ‘‘$2,000,000, or by imprisonment for not more than 

16 10 years’’. 

17 (b) CRIMINAL PENALTY FOR RETALIATION.—Section 

18 110(d) is further amended— 

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

20 and 

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

22 ‘‘(2) Whoever knowingly takes any action that is di23 rectly or indirectly harmful to any person, including action 

24 that interferes with the lawful employment or livelihood 

25 of any person, because such person has provided an auVerDate Mar 15 2010 00:29 Apr 30, 2013 Jkt 029200 PO 00000 Frm 00035 Fmt 6652 Sfmt 6201 E:\BILLS\S805.IS S805

smartinez on DSK6TPTVN1PROD with BILLS
36 

•S 805 IS

1 thorized representative of the Secretary or another law en2 forcement officer with any information related to the exist3 ence of a health or safety violation or an unhealthful or 

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

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

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

7 (c) ADVANCE NOTICE OF INSPECTIONS.— 

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

9 820(e)) is amended— 

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

11 ‘‘(1) Unless’’; and 

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

13 ‘‘(2) Unless otherwise authorized by this Act, any op14 erator, agent or contractor of any operator, miner, inspec15 tor, employee of the Administration, or State mine inspec16 tor, that knowingly gives, causes to give, or attempts to 

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

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

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

20 or both.’’. 

21 (2) POSTING OF ADVANCE NOTICE PEN22 ALTIES.—Section 109 (30 U.S.C. 819) is amended 

23 by adding at the end the following: 

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

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


smartinez on DSK6TPTVN1PROD with BILLS
37 

•S 805 IS

1 bulletin board described in subsection (a) and in a con2 spicuous place near each staffed entrance onto the mine 

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

4 prescribed by the Secretary— 

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

6 to give or cause to give advance notice of any inspec7 tion to be conducted under this Act is unlawful pur8 suant to section 110(e); and 

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

10 under such subsection.’’. 

11 SEC. 304. COMMISSION REVIEW OF PENALTY ASSESS12 MENTS. 

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

14 striking ‘‘In assessing civil monetary penalties, the Com15 mission shall consider’’ and inserting the following: ‘‘In 

16 any review of a citation and proposed penalty assessment 

17 contested by an operator, the Commission shall assess not 

18 less than the penalty derived by using the same method19 ology (including any point system) prescribed in regula20 tions under this Act, so as to ensure consistency in oper21 ator penalty assessments, except that the Commission may 

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

23 from the utilization of such methodology if the Commis24 sion finds that there are extraordinary circumstances. If 

25 there is no such methodology prescribed for a citation or 


smartinez on DSK6TPTVN1PROD with BILLS
38 

•S 805 IS

1 there are such extraordinary circumstances, the Commis2 sion shall assess the penalty by considering’’. 

3 SEC. 305. DELINQUENT PAYMENTS AND PREJUDGMENT IN4 TEREST. 

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

6 (30 U.S.C. 820(j)) is amended by striking the second and 

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

8 order interest on such penalties shall begin to accrue on 

9 the date the operator contests a citation issued under this 

10 Act, including any mandatory health or safety standard 

11 or regulation promulgated under this Act, and shall end 

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

13 interest shall be calculated at the current underpayment 

14 rate determined by the Secretary of the Treasury pursu15 ant to section 6621 of the Internal Revenue Code of 1986, 

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

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

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

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

20 (b) ENSURING PAYMENT OF PENALTIES.— 

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

22 820) is further amended— 

23 (A) by redesignating subsection (l) as sub24 section (m); and 


smartinez on DSK6TPTVN1PROD with BILLS
39 

•S 805 IS

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

2 following: 

3 ‘‘(l) ENSURING PAYMENTS OF PENALTIES.— 

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

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

6 penalty assessment that has become a final order of 

7 the Commission or a court within 45 days after such 

8 assessment became a final order, the Secretary shall 

9 send the operator a letter advising the operator of 

10 the consequences under this subsection of such fail11 ure to pay. The letter shall also advise the operator 

12 of the opportunity to enter into or modify a payment 

13 plan with the Secretary based upon a demonstrated 

14 inability to pay, the procedure for entering into such 

15 plan, and the consequences of not entering into or 

16 not complying with such plan. 

17 ‘‘(2) WITHDRAWAL ORDERS FOLLOWING FAIL18 URE TO PAY.—If an operator that receives a letter 

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

20 the date that is 180 days after such assessment be21 came a final order and has not entered into a pay22 ment plan with the Secretary, the Secretary shall 

23 issue an order requiring such operator to cause all 

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

25 to be withdrawn from, and to be prohibited from enVerDate Mar 15 2010 00:29 Apr 30, 2013 Jkt 029200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\S805.IS S805

smartinez on DSK6TPTVN1PROD with BILLS
40 

•S 805 IS

1 tering, the mine that is covered by the final order 

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

3 such assessment in full (including interest and ad4 ministrative costs) or enters into a payment plan 

5 with the Secretary. If such operator enters into a 

6 payment plan with the Secretary and at any time 

7 fails to comply with the terms specified in such pay8 ment plan, the Secretary shall issue an order requir9 ing such operator to cause all persons, except those 

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

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

12 be prohibited from entering such mine, until the op13 erator rectifies the noncompliance with the payment 

14 plan in the manner specified in such payment 

15 plan.’’. 

16 (2) APPLICABILITY AND EFFECTIVE DATE.— 

17 The amendments made by paragraph (1) shall apply 

18 to all unpaid civil penalty assessments under the 

19 Federal Mine Safety and Health Act of 1977 (30 

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

21 penalty assessment that became a final order of the 

22 Commission or a court before the date of enactment 

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

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

25 amended) (30 U.S.C. 820(l)) shall be calculated as 


smartinez on DSK6TPTVN1PROD with BILLS
41 

•S 805 IS

1 beginning on the date of enactment of this Act in2 stead of on the date of the final order. 

3 TITLE IV—WORKER RIGHTS AND 

4 PROTECTIONS 

5 SEC. 401. PROTECTION FROM RETALIATION. 

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

7 as follows: 

8 ‘‘(c) PROTECTION FROM RETALIATION.— 

9 ‘‘(1) RETALIATION PROHIBITED.— 

10 ‘‘(A) RETALIATION FOR COMPLAINT OR

11 TESTIMONY.—No person shall discharge or in 

12 any manner discriminate against or cause to be 

13 discharged or cause discrimination against or 

14 otherwise interfere with the exercise of the stat15 utory rights of any miner or other employee of 

16 an operator, any representative of miners, or 

17 any applicant for employment— 

18 ‘‘(i) because such miner or other em19 ployee, representative, or applicant for em20 ployment— 

21 ‘‘(I) has filed or made a com22 plaint, or is about to file or make a 

23 complaint, including a complaint noti24 fying the operator or the operator’s 

25 agent, or the representative of the 


smartinez on DSK6TPTVN1PROD with BILLS
42 

•S 805 IS

1 miners at the coal or other mine, of 

2 an alleged danger or safety or health 

3 violation in a coal or other mine; 

4 ‘‘(II) has instituted or caused to 

5 be instituted, or is about to institute 

6 or cause to be instituted, any pro7 ceeding under or related to this Act or 

8 has testified or is about to testify in 

9 any such proceeding; 

10 ‘‘(III) has exercised, on behalf of 

11 him or herself or others, any right af12 forded by this Act, or has reported 

13 any injury or illness to an operator or 

14 agent; 

15 ‘‘(IV) has testified or is about to 

16 testify before Congress or any Federal 

17 or State proceeding related to safety 

18 or health in a coal or other mine; or 

19 ‘‘(V) refused to violate any provi20 sion of this Act (including any manda21 tory health or safety standard or reg22 ulation promulgated under this Act); 

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

24 of medical evaluations and potential transVerDate Mar 15 2010 00:29 Apr 30, 2013 Jkt 029200 PO 00000 Frm 00042 Fmt 6652 Sfmt 6201 E:\BILLS\S805.IS S805

smartinez on DSK6TPTVN1PROD with BILLS
43 

•S 805 IS

1 fer under a standard published pursuant to 

2 section 101; 

3 ‘‘(iii) where the discharge, discrimina4 tion or other retaliation was based on a 

5 suspicion or belief that such miner or other 

6 employee, representative, or applicant, or 

7 engaged in, or is about to engage in, any 

8 of the activities described in clause (i); or 

9 ‘‘(iv) because the spouse, sibling, 

10 child, or parent of the miner or other em11 ployee or applicant for employment— 

12 ‘‘(I) is a miner or other employee 

13 or applicant at a mine under the con14 trol of the same operator; and 

15 ‘‘(II) has engaged in activity that 

16 is protected under clause (i), (ii), or 

17 (iii). 

18 ‘‘(B) RETALIATION FOR REFUSAL TO PER19 FORM DUTIES.— 

20 ‘‘(i) IN GENERAL.—No person shall 

21 discharge or in any manner discriminate 

22 against a miner or other employee of an 

23 operator for refusing to perform the min24 er’s or other employee’s duties if the miner 

25 or other employee has a good-faith and 


smartinez on DSK6TPTVN1PROD with BILLS
44 

•S 805 IS

1 reasonable belief that performing such du2 ties would pose a safety or health hazard 

3 to the miner or other employee or to any 

4 other miner or employee. 

5 ‘‘(ii) STANDARD.—For purposes of 

6 clause (i), the circumstances causing the 

7 miner’s or other employee’s good-faith be8 lief that performing such duties would pose 

9 a safety or health hazard shall be of such 

10 a nature that a reasonable person, under 

11 the circumstances confronting the miner or 

12 other employee, would conclude that there 

13 is such a hazard. In order to qualify for 

14 protection under this paragraph, the miner 

15 or other employee, when practicable, shall 

16 have communicated or attempted to com17 municate the safety or health concern to 

18 the operator and have not received from 

19 the operator a response reasonably cal20 culated to allay such concern. 

21 ‘‘(2) COMPLAINT.—Any miner or other em22 ployee, representative of miners, or applicant for em23 ployment who believes that he or she has been dis24 charged, disciplined, or otherwise discriminated 

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


smartinez on DSK6TPTVN1PROD with BILLS
45 

•S 805 IS

1 may file a complaint with the Secretary alleging 

2 such discrimination not later than 180 days after 

3 the later of the last date on which an alleged viola4 tion of such paragraph occurs or the date on which 

5 the miner or other employee or representative knows 

6 or should reasonably have known that such alleged 

7 violation occurred. 

8 ‘‘(3) INVESTIGATION AND HEARING.— 

9 ‘‘(A) COMMENCEMENT OF INVESTIGATION

10 AND INITIAL DETERMINATION.—Upon receipt 

11 of such complaint, the Secretary shall— 

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

13 to the respondent; 

14 ‘‘(ii) commence an investigation with15 in 15 days of the Secretary’s receipt of the 

16 complaint; and 

17 ‘‘(iii) as soon as practicable after com18 mencing such investigation, make the de19 termination required under subparagraph 

20 (B) regarding the reinstatement of the 

21 miner or other employee. 

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

23 finds that such complaint was not frivolously 

24 brought, the Commission, on an expedited basis 

25 upon application of the Secretary, shall order 


smartinez on DSK6TPTVN1PROD with BILLS
46 

•S 805 IS

1 the immediate reinstatement of the miner or 

2 other employee until there has been a final 

3 Commission order disposing of the underlying 

4 complaint of the miner or other employee. If ei5 ther the Secretary or the miner or other em6 ployee pursues the underlying complaint, such 

7 reinstatement shall remain in effect until the 

8 Commission has disposed of such complaint on 

9 the merits, regardless of whether the Secretary 

10 pursues such complaint by filing a complaint 

11 under subparagraph (D) or the miner or other 

12 employee pursues such complaint by filing an 

13 action under paragraph (4). If neither the Sec14 retary nor the miner or other employee pursues 

15 the underlying complaint within the periods 

16 specified in paragraph (4), such reinstatement 

17 shall remain in effect until such time as the 

18 Commission may, upon motion of the operator 

19 and after providing notice and an opportunity 

20 to be heard to the parties, vacate such com21 plaint for failure to prosecute. 

22 ‘‘(C) INVESTIGATION.—Such investigation 

23 shall include interviewing the complainant 

24 and— 


smartinez on DSK6TPTVN1PROD with BILLS
47 

•S 805 IS

1 ‘‘(i) providing the respondent an op2 portunity to submit to the Secretary a 

3 written response to the complaint and to 

4 present statements from witnesses or pro5 vide evidence; and 

6 ‘‘(ii) providing the complainant an op7 portunity to receive any statements or evi8 dence provided to the Secretary and to 

9 provide additional information or evidence, 

10 or to rebut any statements or evidence. 

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

12 upon such investigation, the Secretary deter13 mines that the provisions of this subsection 

14 have been violated, the Secretary shall imme15 diately file a complaint with the Commission, 

16 with service upon the alleged violator and the 

17 miner or other employee, representative of min18 ers, or applicant for employment alleging such 

19 discrimination or interference and propose an 

20 order granting appropriate relief. 

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

22 Commission shall afford an opportunity for a 

23 hearing on the record (in accordance with sec24 tion 554 of title 5, United States Code, but 

25 without regard to subsection (a)(3) of such secVerDate Mar 15 2010 00:29 Apr 30, 2013 Jkt 029200 PO 00000 Frm 00047 Fmt 6652 Sfmt 6201 E:\BILLS\S805.IS S805

smartinez on DSK6TPTVN1PROD with BILLS
48 

•S 805 IS

1 tion) and thereafter shall issue an order, based 

2 upon findings of fact, affirming, modifying, or 

3 vacating the Secretary’s proposed order, or di4 recting other appropriate relief. Such order 

5 shall become final 30 days after its issuance. 

6 The complaining miner or other employee, rep7 resentative, or applicant for employment may 

8 present additional evidence on his or her own 

9 behalf during any hearing held pursuant to this 

10 paragraph. 

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

12 authority in such proceedings to require a per13 son committing a violation of this subsection to 

14 take such affirmative action to abate the viola15 tion and prescribe a remedy as the Commission 

16 considers appropriate, including— 

17 ‘‘(i) the rehiring or reinstatement of 

18 the miner or other employee with back pay 

19 and interest and without loss of position or 

20 seniority, and restoration of the terms, 

21 rights, conditions, and privileges associated 

22 with the complainant’s employment; 

23 ‘‘(ii) any other compensatory and con24 sequential damages sufficient to make the 


smartinez on DSK6TPTVN1PROD with BILLS
49 

•S 805 IS

1 complainant whole, and exemplary dam2 ages where appropriate; and 

3 ‘‘(iii) expungement of all warnings, 

4 reprimands, or derogatory references that 

5 have been placed in paper or electronic 

6 records or databases of any type relating 

7 to the actions by the complainant that 

8 gave rise to the unfavorable personnel ac9 tion, and, at the complainant’s direction, 

10 transmission of a copy of the decision on 

11 the complaint to any person whom the 

12 complainant reasonably believes may have 

13 received such unfavorable information. 

14 ‘‘(4) NOTICE TO AND ACTION OF COMPLAIN15 ANT.— 

16 ‘‘(A) NOTICE TO COMPLAINANT.—Not 

17 later than 90 days after the receipt of a com18 plaint filed under paragraph (2), the Secretary 

19 shall notify, in writing, the miner or other em20 ployee, representative of miners, or applicant 

21 for employment of his determination whether a 

22 violation has occurred. 

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

24 Secretary, upon investigation, determines that 

25 the provisions of this subsection have not been 


smartinez on DSK6TPTVN1PROD with BILLS
50 

•S 805 IS

1 violated, the complainant shall have the right, 

2 within 30 days after receiving notice of the Sec3 retary’s determination, to file an action in his 

4 or her own behalf before the Commission, 

5 charging discrimination or interference in viola6 tion of paragraph (1). 

7 ‘‘(C) HEARING AND DECISION.—The Com8 mission shall afford an opportunity for a hear9 ing on the record (in accordance with section 

10 554 of title 5, United States Code, but without 

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

12 and thereafter shall issue an order, based upon 

13 findings of fact, dismissing or sustaining the 

14 complainant’s charges and, if the charges are 

15 sustained, granting such relief as it deems ap16 propriate as described in paragraph (3)(F). 

17 Such order shall become final 30 days after its 

18 issuance. 

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

20 complaint pursuant to this subsection, the Commis21 sion may determine that a violation of paragraph (1) 

22 has occurred only if the complainant demonstrates 

23 that any conduct described in paragraph (1) with re24 spect to the complainant was a contributing factor 

25 in the adverse action alleged in the complaint. A deVerDate Mar 15 2010 00:29 Apr 30, 2013 Jkt 029200 PO 00000 Frm 00050 Fmt 6652 Sfmt 6201 E:\BILLS\S805.IS S805

smartinez on DSK6TPTVN1PROD with BILLS
51 

•S 805 IS

1 cision or order that is favorable to the complainant 

2 shall not be issued pursuant to this subsection if the 

3 respondent demonstrates by clear and convincing 

4 evidence that the respondent would have taken the 

5 same adverse action in the absence of such conduct. 

6 ‘‘(6) ATTORNEY’S FEES.—Whenever an order is 

7 issued sustaining the complainant’s charges under 

8 this subsection, a sum equal to the aggregate 

9 amount of all costs and expenses, including attor10 ney’s fees, as determined by the Commission to have 

11 been reasonably incurred by the complainant for, or 

12 in connection with, the institution and prosecution of 

13 such proceedings, shall be assessed against the per14 son committing such violation. The Commission 

15 shall determine whether such costs and expenses 

16 were reasonably incurred by the complainant without 

17 reference to whether the Secretary also participated 

18 in the proceeding. 

19 ‘‘(7) EXPEDITED PROCEEDINGS; JUDICIAL RE20 VIEW.—Proceedings under this subsection shall be 

21 expedited by the Secretary and the Commission. Any 

22 order issued by the Commission under this sub23 section shall be subject to judicial review in accord24 ance with section 106. Violations by any person of 


smartinez on DSK6TPTVN1PROD with BILLS
52 

•S 805 IS

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

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

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

4 remedies provided for in this subsection may not be 

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

6 of employment, including by any pre-dispute arbitra7 tion agreement or collective bargaining agreement. 

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

9 be construed to diminish the rights, privileges, or 

10 remedies of any miner or employee who exercises 

11 rights under any Federal or State law or common 

12 law, or under any collective bargaining agreement.’’. 

13 SEC. 402. PROTECTION FROM LOSS OF PAY. 

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

15 follows: 

16 ‘‘SEC. 111. ENTITLEMENT OF MINERS. 

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

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

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

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

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

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

23 to full compensation by the operator at their regular 

24 rates of pay and in accordance with their regular 


smartinez on DSK6TPTVN1PROD with BILLS
53 

•S 805 IS

1 schedules of pay for the entire period for which they 

2 are idled. 

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

4 Secretary finds that such mine or such area of a 

5 mine was closed by the operator in anticipation of 

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

7 idled by such closure shall be entitled to full com8 pensation by the operator at their regular rates of 

9 pay and in accordance with their regular schedules 

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

11 as the Secretary authorizes reopening of such mine 

12 or such area of the mine. 

13 ‘‘(3) REFUSAL TO COMPLY.—Whenever an op14 erator violates or fails or refuses to comply with any 

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

16 110, all miners employed at the affected mine who 

17 would have been withdrawn from, or prevented from 

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

19 such order shall be entitled to full compensation by 

20 the operator at their regular rates of pay, in addi21 tion to pay received for work performed after such 

22 order was issued, for the period beginning when 

23 such order was issued and ending when such order 

24 is complied with, vacated, or terminated. 

25 ‘‘(b) ENFORCEMENT.— 


smartinez on DSK6TPTVN1PROD with BILLS
54 

•S 805 IS

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

2 shall have authority to order compensation due 

3 under this section upon the filing of a complaint by 

4 a miner or a miner’s representative and after oppor5 tunity for a hearing on the record subject to section 

6 554 of title 5, United States Code. Whenever the 

7 Commission issues an order sustaining the complaint 

8 under this subsection in whole or in part, the Com9 mission shall award the complainant reasonable at10 torneys’ fees and costs. 

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

12 Consistent with the authority of the Secretary to 

13 order miners withdrawn from a mine under this Act, 

14 the Secretary shall order a mine that has been sub15 ject to a withdrawal order under section 103, 104, 

16 107, 108, or 110, and has reopened, to be closed 

17 again if compensation in accordance with the provi18 sions of this section is not paid by the end of the 

19 next regularly scheduled payroll period following the 

20 lifting of a withdrawal order.’’. 


smartinez on DSK6TPTVN1PROD with BILLS
55 

•S 805 IS

1 TITLE V—MODERNIZING 

2 HEALTH AND SAFETY STAND3 ARDS 

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

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

6 adding at the end the following: 

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

8 the interim final rules promulgated under subparagraph 

9 (C), each operator of an underground coal mine shall im10 plement a communication program at the underground 

11 coal mine to ensure that each miner entering the mine 

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

13 current conditions of the mine, including— 

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

15 violate a mandatory health or safety standard or a 

16 plan approved under this Act; and 

17 ‘‘(ii) the general conditions of that miner’s as18 signed working section or other area. 

19 ‘‘(B) In an effort to facilitate the communications de20 scribed in subparagraph (A), each agent of the operator 

21 who is responsible for ensuring the safe and healthful 

22 working conditions at the mine, including mine foremen, 

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

24 exiting the mine or workplace, verbally communicate with 

25 any oncoming agent replacing the exiting agent on duty 


smartinez on DSK6TPTVN1PROD with BILLS
56 

•S 805 IS

1 in order to update the oncoming agent on the conditions 

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

3 including any conditions that are hazardous or that violate 

4 a mandatory health or safety standard or a plan approved 

5 under this Act. Such communications process shall be 

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

7 recorded in a book designated for that purpose and avail8 able for inspection by all interested parties. In the event 

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

10 the oncoming agent of the operator shall meet with the 

11 individual who was responsible for examining the mine to 

12 obtain the necessary information. 

13 ‘‘(C) Not later than 90 days after the date of enact14 ment of the Robert C. Byrd Mine and Workplace Safety 

15 and Health Act of 2013, the Secretary shall promulgate 

16 interim final rules implementing the requirements of sub17 paragraphs (A) and (B).’’. 

18 SEC. 502. ROCK DUST STANDARDS. 

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

20 is amended— 

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

22 following: ‘‘ROCK DUST.— 

23 ‘‘(1) IN GENERAL.—Where rock’’; 

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

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


smartinez on DSK6TPTVN1PROD with BILLS
57 

•S 805 IS

1 present in any ventilating current, the percentage of 

2 incombustible content of such combined dusts shall 

3 be increased 0.4 percent for each 0.1 percent of 

4 methane.’’; and 

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

6 ‘‘(2) METHODS OF MEASUREMENT.— 

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

8 underground coal mine shall take accurate and 

9 representative samples that measure the total 

10 incombustible content of combined coal dust, 

11 rock dust, and other dust in such mine to en12 sure that the coal dust is kept below explosive 

13 levels through the appropriate application of 

14 rock dust. 

15 ‘‘(B) DIRECT READING MONITORS.—In 

16 order to ensure timely assessment and compli17 ance with the requirements of subparagraph 

18 (A), the Secretary shall, beginning not later 

19 than 180 days after the date of enactment of 

20 the Robert C. Byrd Mine and Workplace Safety 

21 and Health Act of 2013, require operators to 

22 measure total incombustible content in samples 

23 of combined coal dust, rock dust, and other 

24 dust, using direct reading monitors that the 

25 Secretary has approved for use in an underVerDate Mar 15 2010 00:29 Apr 30, 2013 Jkt 029200 PO 00000 Frm 00057 Fmt 6652 Sfmt 6201 E:\BILLS\S805.IS S805

smartinez on DSK6TPTVN1PROD with BILLS
58 

•S 805 IS

1 ground coal mine, such as coal dust explosibility 

2 monitors. 

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

4 by not later than 180 days after the date of en5 actment of the Robert C. Byrd Mine and Work6 place Safety and Health Act of 2013, promul7 gate an interim final rule that prescribes meth8 ods for sampling of total incombustible content 

9 (or an equivalent measure of explosibility) in 

10 samples of combined coal dust, rock dust, and 

11 other dust using direct reading monitors and 

12 includes requirements for locations, methods, 

13 and intervals for mandatory operator sampling. 

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

15 1 year after the date of enactment of the Rob16 ert C. Byrd Mine and Workplace Safety and 

17 Health Act of 2013, the Secretary of Health 

18 and Human Services shall, based upon the lat19 est research, recommend to the Secretary of 

20 Labor any revisions to the mandatory operator 

21 sampling locations, methods, and intervals in22 cluded in the interim final rule described in 

23 subparagraph (C) that may be warranted in 

24 light of such research.’’. 


smartinez on DSK6TPTVN1PROD with BILLS
59 

•S 805 IS

1 (b) REPORT.—Not later than 1 year after the date 

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

3 Human Services, in consultation with the Secretary of 

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

5 Education and the Workforce of the House of Representa6 tives and the Committee on Health, Education, Labor, 

7 and Pensions of the Senate, a report— 

8 (1) regarding whether any direct reading mon9 itor described in section 304(d)(2)(B) of the Federal 

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

11 864(d)(2)(B)) is sufficiently reliable and accurate 

12 for the enforcement of the mandatory health or safe13 ty standards by the Secretary of Labor under such 

14 Act, and whether additional improvement to such di15 rect reading monitor, or additional verification re16 garding reliability and accuracy, would be needed for 

17 enforcement purposes; and 

18 (2) identifying any limitations or impediments 

19 for such use in underground coal mines. 

20 (c) ADDITIONAL ROCK DUST REPORTING.—Section 

21 103(h) (30 U.S.C. 813(h)) is amended by inserting after 

22 the first sentence the following: ‘‘An operator of a coal 

23 or other mine shall, as part of the recordkeeping require24 ments of this Act, maintain up-to-date records of the 

25 amount of rock dust purchased and dispersed.’’. 


smartinez on DSK6TPTVN1PROD with BILLS
60 

•S 805 IS

1 SEC. 503. ATMOSPHERIC MONITORING SYSTEMS AND ADDI2 TIONAL TECHNOLOGICAL IMPROVEMENTS. 

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

4 at the end the following: 

5 ‘‘(u) ATMOSPHERIC MONITORING SYSTEMS.—Not 

6 later than 1 year after the date of enactment of the Robert 

7 C. Byrd Mine and Workplace Safety and Health Act of 

8 2013, the Secretary shall promulgate regulations requiring 

9 that each operator of an underground coal mine install 

10 atmospheric monitoring systems that— 

11 ‘‘(1) protect miners where the miners normally 

12 work and travel; 

13 ‘‘(2) provide real-time information regarding 

14 methane and carbon monoxide levels, and airflow di15 rection, as appropriate, with sensing, annunciating, 

16 and recording capabilities; and 

17 ‘‘(3) can, to the maximum extent practicable, 

18 withstand explosions and fires. 

19 ‘‘(v) ADDITIONAL TECHNOLOGICAL IMPROVE20 MENTS.—Not later than 2 years after the date of enact21 ment of the Robert C. Byrd Mine and Workplace Safety 

22 and Health Act of 2013, the Secretary shall promulgate 

23 regulations requiring that mining equipment used in a coal 

24 mine incorporate an atmospheric monitoring and record25 ing device that samples and records the methane, oxygen, 

26 carbon monoxide, and coal dust levels in the mine.’’. 


smartinez on DSK6TPTVN1PROD with BILLS
61 

•S 805 IS

1 ‘‘(w) PROXIMITY DETECTORS.—Not later than 6 

2 months after the date of enactment of the Robert C. Byrd 

3 Mine and Workplace Safety and Health Act of 2013, the 

4 Secretary shall promulgate regulations requiring that min5 ing equipment and other mobile equipment incorporate 

6 proximity detectors.’’. 

7 SEC. 504. TECHNOLOGY RELATED TO RESPIRABLE DUST. 

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

9 (1) by striking ‘‘of Health, Education, and Wel10 fare’’; and 

11 (2) by striking the second sentence and insert12 ing the following: ‘‘Not later than 6 months after 

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

14 and Workplace Safety and Health Act of 2013, the 

15 Secretary shall issue a final regulation lowering per16 missible exposure levels to respirable dust and up17 dating sampling and testing procedures, in order to 

18 provide the maximum feasible protection from res19 pirable dust, including coal and silica dust, that is 

20 achievable through environmental controls. Not later 

21 than 5 years after the date of issuance of such final 

22 regulation, and once every 5 years thereafter, the 

23 Secretary shall reexamine the incidence of pneumo24 coniosis in miners and, unless there is a decline in 

25 pneumoconiosis, shall update the regulation.’’. 


smartinez on DSK6TPTVN1PROD with BILLS
62 

•S 805 IS

1 SEC. 505. REFRESHER TRAINING ON MINER RIGHTS AND 

2 RESPONSIBILITIES. 

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

4 825(a)(3)) is amended to read as follows: 

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

6 hours of refresher training not less frequently than 

7 once every 12 months, and such training shall in8 clude one hour of training on the statutory rights 

9 and responsibilities of miners and their representa10 tives under this Act and other applicable Federal 

11 and State law, pursuant to a program of instruction 

12 developed by the Secretary and delivered by an em13 ployee of the Administration or by a trainer ap14 proved by the Administration that is a party inde15 pendent from the operator;’’. 

16 (b) TIMING OF INITIAL STATUTORY RIGHTS TRAIN17 ING.—Notwithstanding section 115 of the Federal Mine 

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

19 (a)) (30 U.S.C. 825) or the health and safety training pro20 gram approved under such section, an operator shall en21 sure that all miners already employed by the operator on 

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

23 hour of statutory rights and responsibilities training de24 scribed in section 115(a)(3) of such Act by not later than 

25 180 days after such date. 


smartinez on DSK6TPTVN1PROD with BILLS
63 

•S 805 IS

1 SEC. 506. ADDITIONAL TRAINING. 

2 (a) AUTHORITY TO MANDATE ADDITIONAL TRAIN3 ING.— 

4 (1) IN GENERAL.—Section 115 (30 U.S.C. 825) 

5 is further amended by redesignating subsection (e) 

6 as subsection (f) and inserting after subsection (d) 

7 the following: 

8 ‘‘(e) AUTHORITY TO MANDATE ADDITIONAL TRAIN9 ING.— 

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

11 to issue an order requiring that an operator of a 

12 coal or other mine provide additional training be13 yond what is otherwise required by law, and speci14 fying the time period within which such training 

15 shall be provided, if the Secretary finds that— 

16 ‘‘(A)(i) a serious or fatal accident has oc17 curred at such mine; or 

18 ‘‘(ii) such mine has experienced accident 

19 and injury rates, citations for violations of this 

20 Act (including mandatory health or safety 

21 standards or regulations promulgated under 

22 this Act), citations for significant and substan23 tial violations, or withdrawal orders issued 

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

25 mines of similar size and type; and 


smartinez on DSK6TPTVN1PROD with BILLS
64 

•S 805 IS

1 ‘‘(B) additional training would benefit the 

2 health and safety of miners at the mine. 

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

4 fails to provide training ordered under paragraph 

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

6 issue an order requiring such operator to cause all 

7 affected persons, except those persons referred to in 

8 section 104(c), to be withdrawn, and to be prohib9 ited from entering such mine, until such operator 

10 has provided such training.’’. 

11 (2) CONFORMING AMENDMENTS.—Section 

12 104(g)(2) (30 U.S.C. 814(g)(2)) is amended by 

13 striking ‘‘under paragraph (1)’’ both places it ap14 pears and inserting ‘‘under paragraph (1) or section 

15 115(e)’’. 

16 (b) ADDITIONAL TRAINING.—Section 115(a) (30 

17 U.S.C. 825(a)) is amended— 

18 (1) in paragraph (5), by striking the period and 

19 inserting ‘‘; and’’; and 

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

21 ‘‘(6) each miner in an underground coal mine 

22 shall receive quarterly training on the use of self-res23 cue devices, which shall be conducted in cir24 cumstances that approximate actual operating cir25 cumstances as closely as practicable, including pracVerDate Mar 15 2010 00:29 Apr 30, 2013 Jkt 029200 PO 00000 Frm 00064 Fmt 6652 Sfmt 6201 E:\BILLS\S805.IS S805

smartinez on DSK6TPTVN1PROD with BILLS
65 

•S 805 IS

1 tice during production events and during shift 

2 changes.’’. 

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

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

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

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

8 accident conditions’’. 

9 SEC. 508. CERTIFICATION OF PERSONNEL. 

10 (a) IN GENERAL.—Title I is further amended by add11 ing at the end the following: 

12 ‘‘SEC. 118. CERTIFICATION OF PERSONNEL. 

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

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

15 mine to perform any duties or provide any training that 

16 this Act, including a mandatory health or safety standard 

17 or regulation promulgated pursuant to this Act, requires 

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

19 qualified, or otherwise approved person, shall be permitted 

20 to perform such duties or provide such training only if 

21 such person has a current certification, registration, quali22 fication, or approval to perform such duties or provide 

23 such training consistent with the requirements of this sec24 tion. 


smartinez on DSK6TPTVN1PROD with BILLS
66 

•S 805 IS

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

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

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

5 and Workplace Safety and Health Act of 2013, the 

6 Secretary shall issue mandatory standards to estab7 lish— 

8 ‘‘(A) requirements for such certification, 

9 registration, qualification, or other approval, in10 cluding the experience, examinations, and ref11 erences that may be required as appropriate; 

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

13 procedures for obtaining and renewing such cer14 tification, registration, qualification, or other 

15 approval; and 

16 ‘‘(C) procedures and criteria for revoking 

17 such certification, registration, qualification, or 

18 other approval, including procedures that en19 sure that the Secretary responds to requests for 

20 revocation. 

21 ‘‘(2) COORDINATION WITH STATES.—In devel22 oping the standards under paragraph (1), the Sec23 retary shall consult with States that have miner cer24 tification programs to ensure effective coordination 

25 with existing State standards and requirements for 


smartinez on DSK6TPTVN1PROD with BILLS
67 

•S 805 IS

1 certification. The standards required under para2 graph (1) may provide that the certification, reg3 istration, qualification, or other approval of the 

4 State in which the coal or other mine is located sat5 isfies the requirement of subsection (a) if the State’s 

6 program of certification, registration, qualification, 

7 or other approval is no less stringent than the stand8 ards established by the Secretary under paragraph 

9 (1). 

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

11 ‘‘(1) ASSESSMENT AND COLLECTION.—Begin12 ning 180 days after the date of enactment of the 

13 Robert C. Byrd Mine and Workplace Safety and 

14 Health Act of 2013, the Secretary shall assess and 

15 collect fees, in accordance with this subsection, from 

16 each operator for each person certified under this 

17 section. Fees shall be assessed and collected in 

18 amounts determined by the Secretary as necessary 

19 to fund the certification programs established under 

20 this section. 

21 ‘‘(2) MINE SAFETY AND HEALTH CERTIFI22 CATION FUND.—There is established in the Treasury 

23 of the United States a separate account for the de24 posit of fees collected under this subsection to be 

25 known as the Mine Safety and Health Certification 


smartinez on DSK6TPTVN1PROD with BILLS
68 

•S 805 IS

1 Fund. The Secretary shall deposit any fees collected 

2 pursuant to paragraph (1) into the fund. 

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

4 Health Certification Fund shall be available to the 

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

6 expenditures to carry out the certification programs 

7 established under this subsection. 

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

9 addition to funds appropriated under section 114, 

10 there is authorized to be appropriated from the Mine 

11 Safety and Health Certification Fund to the Assist12 ant Secretary for Mine Safety and Health for each 

13 fiscal year in which fees are collected under para14 graph (1) an amount equal to the total amount col15 lected during the previous fiscal year from fees as16 sessed pursuant to this subsection. Such amounts 

17 are authorized to remain available until expended. 

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

19 Fees authorized and collected under this subsection 

20 shall be available for obligation only to the extent 

21 and in the amount provided in advance in appropria22 tions Acts. 

23 ‘‘(d) CITATION; WITHDRAWAL ORDER.—Any oper24 ator who permits a person to perform any of the health 

25 or safety related functions described in subsection (a) 


smartinez on DSK6TPTVN1PROD with BILLS
69 

•S 805 IS

1 without a current certification that meets the require2 ments of this section shall be considered to have com3 mitted an unwarrantable failure under section 104(d)(1), 

4 and the Secretary shall issue an order requiring that the 

5 miner be withdrawn or reassigned to duties that do not 

6 require such certification.’’. 

7 (b) CONFORMING AMENDMENTS.—The Act is amend8 ed— 

9 (1) in section 318 (30 U.S.C. 878)— 

10 (A) by striking subsections (a) and (b); 

11 (B) in subsection (c), by redesignating 

12 paragraphs (1) through (3) as subparagraphs 

13 (A) through (C), respectively; 

14 (C) in subsection (g), by redesignating 

15 paragraphs (1) through (4) as subparagraphs 

16 (A) through (D), respectively; and 

17 (D) by redesignating subsections (c) 

18 through (j) as paragraphs (1) through (8), re19 spectively; and 

20 (2) by redesignating section 214 as section 114. 

21 SEC. 509. ELECTRONIC RECORDS REQUIREMENT. 

22 Section 103 is amended by adding at the end the fol23 lowing: 

24 ‘‘(n) ELECTRONIC RECORDS.— 


smartinez on DSK6TPTVN1PROD with BILLS
70 

•S 805 IS

1 ‘‘(1) IN GENERAL.—Not later than 180 days 

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

3 Mine and Workplace Safety and Health Act of 2013, 

4 the Secretary shall promulgate regulations requiring 

5 that mine operators retain records and data required 

6 by this Act, or otherwise required by the Secretary, 

7 that are created, stored or transmitted in electronic 

8 form. 

9 ‘‘(2) CONTENTS.—The records described in 

10 paragraph (1) shall include records pertaining to— 

11 ‘‘(A) miner safety and health, tracking and 

12 communications; 

13 ‘‘(B) atmospheric monitoring of methane, 

14 carbon monoxide, oxygen, coal dust, and other 

15 mine conditions; 

16 ‘‘(C) equipment usage history and oper17 ating parameters; 

18 ‘‘(D) equipment calibration and mainte19 nance; and 

20 ‘‘(E) other information relevant to compli21 ance with Federal mine health and safety laws 

22 (including health or safety standards and regu23 lations). 

24 ‘‘(3) REGULATIONS.—Not later than 2 years 

25 after the date of enactment of the Robert C. Byrd 


smartinez on DSK6TPTVN1PROD with BILLS
71 

•S 805 IS

1 Mine and Workplace Safety and Health Act of 2013, 

2 the Secretary shall promulgate a regulation regard3 ing the minimum necessary capabilities of equipment 

4 to retain, store, and recover data created or trans5 mitted in electronic form for purposes of this sub6 section.’’. 

7 TITLE VI—ADDITIONAL MINE 

8 SAFETY PROVISIONS 

9 SEC. 601. DEFINITIONS. 

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

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

12 ‘‘(d) ‘operator’ means— 

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

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

15 mine; or 

16 ‘‘(B) controls such mine by making or hav17 ing the authority to make management or oper18 ational decisions that affect, directly or indi19 rectly, the health or safety at such mine; or 

20 ‘‘(2) any independent contractor performing 

21 services or construction at such mine;’’. 

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

23 802(e)) is amended by striking ‘‘the miners’’ and inserting 

24 ‘‘any miner’’. 


smartinez on DSK6TPTVN1PROD with BILLS
72 

•S 805 IS

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

2 802(g)) is amended by inserting after ‘‘or other mine’’ the 

3 following: ‘‘, and includes any individual who is not cur4 rently working in a coal or other mine but would be cur5 rently working in such mine, but for an accident in such 

6 mine’’. 

7 (d) DEFINITION OF IMMINENT DANGER.—Section 

8 3(j) (30 U.S.C. 802(j)) is amended— 

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

10 following: ‘‘means— 

11 ‘‘(1) the’’; 

12 (2) by striking the semicolon at the end and in13 serting ‘‘; or’’; and 

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

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

16 practices (regardless of whether related to each 

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

18 reasonably be expected to cause death or serious 

19 physical harm before such conditions or practices 

20 can be abated;’’. 

21 (e) DEFINITION OF SIGNIFICANT AND SUBSTANTIAL

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

23 amended— 

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

25 the semicolon; 


smartinez on DSK6TPTVN1PROD with BILLS
73 

•S 805 IS

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

2 the end and inserting a semicolon; 

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

4 the end and inserting ‘‘; and’’; and 

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

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

7 violation of this Act, including any mandatory health or 

8 safety standard or regulation promulgated under this Act, 

9 that is of such nature as could significantly and substan10 tially contribute to the cause and effect of a coal or other 

11 mine safety or health hazard as described in section 

12 104(d).’’. 

13 SEC. 602. ASSISTANCE TO STATES. 

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

15 (1) in subsection (a)— 

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

17 by striking ‘‘, in coordination with the Sec18 retary of Health, Education, and Welfare and 

19 the Secretary of the Interior,’’; 

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

21 after the semicolon; 

22 (C) in paragraph (3), by striking the pe23 riod and inserting ‘‘; and’’; and 

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


smartinez on DSK6TPTVN1PROD with BILLS
74 

•S 805 IS

1 ‘‘(4) to assist such State in developing and im2 plementing any certification program for coal or 

3 other mines required for compliance with section 

4 118.’’; and 

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

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

7 each succeeding fiscal year’’ and inserting 

8 ‘‘$20,000,000 for each fiscal year’’. 

9 SEC. 603. BLACK LUNG MEDICAL REPORTS. 

10 The Black Lung Benefits Act (30 U.S.C. 901 et seq.) 

11 is amended by adding at the end the following: 

12 ‘‘SEC. 435. MEDICAL REPORTS. 

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

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

15 examination regarding the miner’s respiratory or pul16 monary condition shall, not later than 14 days after the 

17 miner has been examined, deliver to the claimant a com18 plete copy of the examining physician’s report. The exam19 ining physician’s report shall be in writing and shall set 

20 out in detail the examiner’s findings, including any diag21 noses and conclusions and the results of any diagnostic 

22 imaging techniques and tests that were performed on the 

23 miner.’’. 


smartinez on DSK6TPTVN1PROD with BILLS
75 

•S 805 IS

1 SEC. 604. STUDY ON WORKFORCE NEEDS. 

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

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

4 of the United States shall conduct a study on the work5 force needs of the mining industry and Federal and State 

6 mining enforcement agencies, including the need for engi7 neers and mine safety and health professionals. 

8 (b) ISSUES TO BE STUDIED.—The study in sub9 section (a) shall include— 

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

11 the mine engineers and the mine safety and health 

12 workforce; and 

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

14 engineers and safety and health professionals with15 in— 

16 (A) the mining industry; 

17 (B) the Mine Safety and Health Adminis18 tration; and 

19 (C) State enforcement agencies responsible 

20 for mine safety and health. 

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

22 States shall prepare and submit to the Committee on 

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

24 to the Committee on Education and the Workforce of the 

25 House of Representatives a report on the study described 

26 in subsection (a). 


smartinez on DSK6TPTVN1PROD with BILLS
76 

•S 805 IS

1 (d) RECOMMENDATIONS.—As needed, the Comp2 troller General of the United States shall provide rec3 ommendations for improvement in the report in subsection 

4 (c). 

5 SEC. 605. MINE SAFETY AND HEALTH ADMINISTRATION 

6 STRATEGIC PLANNING. 

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

8 2013, the Secretary of Labor, acting through the Assist9 ant Secretary of Labor for Mine Safety and Health, shall 

10 submit to the Director of the Office of Management and 

11 Budget and to the Congress, and post on the public 

12 website of the Mine Safety and Health Administration, a 

13 5-year strategic plan for program activities. Such plan 

14 shall be— 

15 (1) prepared in accordance with the require16 ments for agency strategic plans under section 306 

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

18 provided in this section; 

19 (2) aligned with the strategic plan of the De20 partment of Labor; and 

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

22 (b) ANNUAL PERFORMANCE PLAN.—Beginning with 

23 the Mine Safety and Health Administration budget sub24 mission for fiscal year 2015, the Secretary of Labor, act25 ing through the Assistant Secretary of Labor for Mine 


smartinez on DSK6TPTVN1PROD with BILLS
77 

•S 805 IS

1 Safety and Health, shall submit to the Director of the Of2 fice of Management and Budget an annual performance 

3 plan covering each program activity set forth in the budget 

4 of the Mine Safety and Health Administration. Such plan 

5 shall— 

6 (1) be prepared in accordance with the require7 ments for performance plans under section 1115 of 

8 title 31, United States Code, except as otherwise 

9 provided in this section; 

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

11 Mine Safety and Health Administration under sub12 section (a); and 

13 (3) include a strategic workforce plan that pro14 vides a clear line of sight between the performance 

15 goals and objectives of the Mine Safety and Health 

16 Administration and the human capital strategies em17 ployed to meet such goals and objectives. 

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

19 of each fiscal year, beginning with fiscal year 2015, the 

20 Secretary of Labor, acting through the Assistant Sec21 retary of Labor for Mine Safety and Health, shall prepare 

22 and submit to the President and Congress, and post on 

23 the public website of the Mine Safety and Health Adminis24 tration, a report on the program performance for the pre25 vious fiscal year. Such report shall— 


smartinez on DSK6TPTVN1PROD with BILLS
78 

•S 805 IS

1 (1) be prepared in accordance with the require2 ments for program performance reports under sec3 tion 1116 of title 31, United States Code; and 

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

5 and Health Administration is using performance in6 formation to improve program performance. 

7 SEC. 606. DOUBLE ENCUMBRANCE; SUCCESSION PLAN. 

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

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

13 and Health Administration. The number of such positions 

14 shall be consistent with the staffing requirements set forth 

15 in the succession plan under subsection (b). 

16 (b) SUCCESSION PLAN.— 

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

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

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

24 shall— 


smartinez on DSK6TPTVN1PROD with BILLS
79 

•S 805 IS

1 (A) estimate employee turnover for each 

2 year; 

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

5 ratio of trainees to authorized representatives; 

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

8 and technical specialists; 

9 (D) include the implementation of tracking 

10 systems to assure that staffing levels of author11 ized representatives and technical specialists do 

12 not fall below the minimum required to conduct 

13 necessary inspections, thoroughly review mine 

14 plans, and conduct accident and special inves15 tigations; and 

16 (E) identify resources necessary to imple17 ment such plan. Such succession plan shall be 

18 updated biennially. 

19 (2) UPDATE OF PLAN.—The Secretary of Labor 

20 shall update the succession plan under subsection 

21 (a) biennially. 


smartinez on DSK6TPTVN1PROD with BILLS
80 

•S 805 IS

1 TITLE VII—AMENDMENTS TO 

2 THE OCCUPATIONAL SAFETY 

3 AND HEALTH ACT OF 1970 

4 SEC. 701. COVERAGE OF PUBLIC EMPLOYEES. 

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

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

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

8 follows through the period at the end and inserting ‘‘in9 cluding the United States, a State, or a political subdivi10 sion of a State.’’. 

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

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

13 the application of section 18 of the Occupational Safety 

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

15 SEC. 702. ENHANCED PROTECTIONS FROM RETALIATION. 

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

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

18 660(c)(1)) is amended— 

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

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

21 ‘‘discharge or cause to be discharged, or in any man22 ner discriminate against or cause to be discriminated 

23 against, any employee because— 

24 ‘‘(A) such’’; 


smartinez on DSK6TPTVN1PROD with BILLS
81 

•S 805 IS

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

2 the following: ‘‘this Act; 

3 ‘‘(B) such employee has’’; 

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

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

6 Congress or in any Federal or State proceeding re7 lated to safety or health; 

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

9 provision of this Act; or 

10 ‘‘(D) of the exercise’’; and 

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

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

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

14 the employer, safety and health committee involved, 

15 or employee safety and health representative in16 volved’’. 

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

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

19 paragraph (2) and inserting the following: 

20 ‘‘(2)(A) No person shall discharge, or cause to be dis21 charged, or in any manner discriminate against, or cause 

22 to be discriminated against, an employee for refusing to 

23 perform the employee’s duties if the employee has a rea24 sonable apprehension that performing such duties would 


smartinez on DSK6TPTVN1PROD with BILLS
82 

•S 805 IS

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

2 health of, the employee or other employees. 

3 ‘‘(B) For purposes of subparagraph (A), the cir4 cumstances causing the employee’s good-faith belief that 

5 performing such duties would pose a safety or health haz6 ard shall be of such a nature that a reasonable person, 

7 under the circumstances confronting the employee, would 

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

9 for protection under this paragraph, the employee, when 

10 practicable, shall have communicated or attempted to com11 municate the safety or health concern to the employer and 

12 have not received from the employer a response reasonably 

13 calculated to allay such concern.’’. 

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

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

16 inserting the following: 

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

18 that the employee has been discharged, disciplined, 

19 or otherwise discriminated against by any person in 

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

21 such violation by filing a complaint with the Sec22 retary under paragraph (5). 

23 ‘‘(4) STATUTE OF LIMITATIONS.— 


smartinez on DSK6TPTVN1PROD with BILLS
83 

•S 805 IS

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

2 the action permitted by paragraph (3) not later 

3 than 180 days after the later of— 

4 ‘‘(i) the date on which an alleged vio5 lation of paragraph (1) or (2) occurs; or 

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

7 knows or should reasonably have known 

8 that such alleged violation occurred. 

9 ‘‘(B) REPEAT VIOLATION.—Except in 

10 cases when the employee has been discharged, 

11 a violation of paragraph (1) or (2) shall be con12 sidered to have occurred on the last date an al13 leged repeat violation occurred. 

14 ‘‘(5) INVESTIGATION.— 

15 ‘‘(A) IN GENERAL.—An employee may, 

16 within the time period required under para17 graph (4), file a complaint with the Secretary 

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

19 the complaint alleges a prima facie case, the 

20 Secretary shall conduct an investigation of the 

21 allegations in the complaint, which— 

22 ‘‘(i) shall include— 

23 ‘‘(I) interviewing the complain24 ant; 


smartinez on DSK6TPTVN1PROD with BILLS
84 

•S 805 IS

1 ‘‘(II) providing the respondent an 

2 opportunity to— 

3 ‘‘(aa) submit to the Sec4 retary a written response to the 

5 complaint; and 

6 ‘‘(bb) meet with the Sec7 retary to present statements from 

8 witnesses or provide evidence; 

9 and 

10 ‘‘(III) providing the complainant 

11 an opportunity to— 

12 ‘‘(aa) receive any statements 

13 or evidence provided to the Sec14 retary; 

15 ‘‘(bb) meet with the Sec16 retary; and 

17 ‘‘(cc) rebut any statements 

18 or evidence; and 

19 ‘‘(ii) may include issuing subpoenas 

20 for the purposes of such investigation. 

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

22 after the filing of the complaint, the Secretary 

23 shall— 


smartinez on DSK6TPTVN1PROD with BILLS
85 

•S 805 IS

1 ‘‘(i) determine whether reasonable 

2 cause exists to believe that a violation of 

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

4 ‘‘(ii) issue a decision granting or de5 nying relief. 

6 ‘‘(6) PRELIMINARY ORDER FOLLOWING INVES7 TIGATION.—If, after completion of an investigation 

8 under paragraph (5)(A), the Secretary finds reason9 able cause to believe that a violation of paragraph 

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

11 preliminary order providing relief authorized under 

12 paragraph (14) at the same time the Secretary 

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

14 novo hearing is not requested within the time period 

15 required under paragraph (7)(A)(i), such prelimi16 nary order shall be deemed a final order of the Sec17 retary and is not subject to judicial review. 

18 ‘‘(7) HEARING.— 

19 ‘‘(A) REQUEST FOR HEARING.— 

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

21 on the record before an administrative law 

22 judge may be requested— 

23 ‘‘(I) by the complainant or re24 spondent within 30 days after receiv25 ing notification of a decision granting 


smartinez on DSK6TPTVN1PROD with BILLS
86 

•S 805 IS

1 or denying relief issued under para2 graph 5(D) or paragraph (6) respec3 tively; 

4 ‘‘(II) by the complainant within 

5 30 days after the date the complaint 

6 is dismissed without investigation by 

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

8 or 

9 ‘‘(III) by the complainant within 

10 120 days after the date of filing the 

11 complaint, if the Secretary has not 

12 issued a decision under paragraph 

13 (5)(B). 

14 ‘‘(ii) REINSTATEMENT ORDER.—The 

15 request for a hearing shall not operate to 

16 stay any preliminary reinstatement order 

17 issued under paragraph (6). 

18 ‘‘(B) PROCEDURES.— 

19 ‘‘(i) IN GENERAL.—A hearing re20 quested under this paragraph shall be con21 ducted expeditiously and in accordance 

22 with rules established by the Secretary for 

23 hearings conducted by administrative law 

24 judges. 


smartinez on DSK6TPTVN1PROD with BILLS
87 

•S 805 IS

1 ‘‘(ii) SUBPOENAS; PRODUCTION OF

2 EVIDENCE.—In conducting any such hear3 ing, the administrative law judge may issue 

4 subpoenas. The respondent or complainant 

5 may request the issuance of subpoenas 

6 that require the deposition of, or the at7 tendance and testimony of, witnesses and 

8 the production of any evidence (including 

9 any books, papers, documents, or record10 ings) relating to the matter under consid11 eration. 

12 ‘‘(iii) DECISION.—The administrative 

13 law judge shall issue a decision not later 

14 than 90 days after the date on which a 

15 hearing was requested under this para16 graph and promptly notify, in writing, the 

17 parties and the Secretary of such decision, 

18 including the findings of fact and conclu19 sions of law. If the administrative law 

20 judge finds that a violation of paragraph 

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

22 issue an order for relief under paragraph 

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

24 timely requested, such order shall be 


smartinez on DSK6TPTVN1PROD with BILLS
88 

•S 805 IS

1 deemed a final order of the Secretary that 

2 is not subject to judicial review. 

3 ‘‘(8) ADMINISTRATIVE APPEAL.— 

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

5 days after the date of notification of a decision 

6 and order issued by an administrative law judge 

7 under paragraph (7), the complainant or re8 spondent may file, with objections, an adminis9 trative appeal with an administrative review 

10 body designated by the Secretary (referred to in 

11 this paragraph as the ‘review board’). 

12 ‘‘(B) STANDARD OF REVIEW.—In review13 ing the decision and order of the administrative 

14 law judge, the review board shall affirm the de15 cision and order if it is determined that the fac16 tual findings set forth therein are supported by 

17 substantial evidence and the decision and order 

18 are made in accordance with applicable law. 

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

20 grants an administrative appeal, the review 

21 board shall issue a final decision and order af22 firming or reversing, in whole or in part, the 

23 decision under review by not later than 90 days 

24 after receipt of the administrative appeal. If it 

25 is determined that a violation of paragraph (1) 


smartinez on DSK6TPTVN1PROD with BILLS
89 

•S 805 IS

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

2 a final decision and order providing relief au3 thorized under paragraph (14). Such decision 

4 and order shall constitute final agency action 

5 with respect to the matter appealed. 

6 ‘‘(9) SETTLEMENT IN THE ADMINISTRATIVE

7 PROCESS.— 

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

9 issuance of a final order, an investigation or 

10 proceeding under this subsection may be termi11 nated on the basis of a settlement agreement 

12 entered into by the parties. 

13 ‘‘(B) PUBLIC POLICY CONSIDERATIONS.— 

14 Neither the Secretary, an administrative law 

15 judge, or review board conducting a hearing 

16 under this subsection shall accept a settlement 

17 that contains conditions conflicting with the 

18 rights protected under this Act or that are con19 trary to public policy, including a restriction on 

20 a complainant’s right to future employment 

21 with employers other than the specific employ22 ers named in a complaint. 

23 ‘‘(10) INACTION BY THE REVIEW BOARD OR AD24 MINISTRATIVE LAW JUDGE.— 


smartinez on DSK6TPTVN1PROD with BILLS
90 

•S 805 IS

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

2 bring a de novo action described in subpara3 graph (B) if— 

4 ‘‘(i) an administrative law judge has 

5 not issued a decision and order within the 

6 90-day time period required under para7 graph (7)(B)(iii); or 

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

9 a decision and order within the 90-day 

10 time period required under paragraph 

11 (8)(C). 

12 ‘‘(B) DE NOVO ACTION.—Such de novo ac13 tion may be brought at law or equity in the 

14 United States district court for the district 

15 where a violation of paragraph (1) or (2) alleg16 edly occurred or where the complainant resided 

17 on the date of such alleged violation. The court 

18 shall have jurisdiction over such action without 

19 regard to the amount in controversy and to 

20 order appropriate relief under paragraph (14). 

21 Such action shall, at the request of either party 

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

23 jury. 

24 ‘‘(11) JUDICIAL REVIEW.— 


smartinez on DSK6TPTVN1PROD with BILLS
91 

•S 805 IS

1 ‘‘(A) TIMELY APPEAL TO THE COURT OF

2 APPEALS.—Any party adversely affected or ag3 grieved by a final decision and order issued 

4 under this subsection may obtain review of such 

5 decision and order in the United States Court 

6 of Appeals for the circuit where the violation, 

7 with respect to which such final decision and 

8 order was issued, allegedly occurred or where 

9 the complainant resided on the date of such al10 leged violation. To obtain such review, a party 

11 shall file a petition for review not later than 60 

12 days after the final decision and order was 

13 issued. Such review shall conform to chapter 7 

14 of title 5, United States Code. The commence15 ment of proceedings under this subparagraph 

16 shall not, unless ordered by the court, operate 

17 as a stay of the final decision and order. 

18 ‘‘(B) LIMITATION ON COLLATERAL AT19 TACK.—An order and decision with respect to 

20 which review may be obtained under subpara21 graph (A) shall not be subject to judicial review 

22 in any criminal or other civil proceeding. 

23 ‘‘(12) ENFORCEMENT OF ORDER.—If a re24 spondent fails to comply with an order issued under 

25 this subsection, the Secretary or the complainant on 


smartinez on DSK6TPTVN1PROD with BILLS
92 

•S 805 IS

1 whose behalf the order was issued may file a civil ac2 tion for enforcement in the United States district 

3 court for the district in which the violation was 

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

5 Secretary and the complainant file such action, the 

6 action of the Secretary shall take precedence. The 

7 district court shall have jurisdiction to grant all ap8 propriate relief described in paragraph (14). 

9 ‘‘(13) BURDENS OF PROOF.— 

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

11 making a determination or adjudicating a com12 plaint pursuant to this subsection, the Sec13 retary, administrative law judge, review board, 

14 or a court may determine that a violation of 

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

16 complainant demonstrates that any conduct de17 scribed in paragraph (1) or (2) with respect to 

18 the complainant was a contributing factor in 

19 the adverse action alleged in the complaint. 

20 ‘‘(B) PROHIBITION.—Notwithstanding sub21 paragraph (A), a decision or order that is favor22 able to the complainant shall not be issued in 

23 any administrative or judicial action pursuant 

24 to this subsection if the respondent dem25 onstrates by clear and convincing evidence that 


smartinez on DSK6TPTVN1PROD with BILLS
93 

•S 805 IS

1 the respondent would have taken the same ad2 verse action in the absence of such conduct. 

3 ‘‘(14) RELIEF.— 

4 ‘‘(A) ORDER FOR RELIEF.—If the Sec5 retary, administrative law judge, review board, 

6 or a court determines that a violation of para7 graph (1) or (2) has occurred, the Secretary or 

8 court, respectively, shall have jurisdiction to 

9 order all appropriate relief, including injunctive 

10 relief, compensatory and exemplary damages, 

11 including— 

12 ‘‘(i) affirmative action to abate the 

13 violation; 

14 ‘‘(ii) reinstatement without loss of po15 sition or seniority, and restoration of the 

16 terms, rights, conditions, and privileges as17 sociated with the complainant’s employ18 ment, including opportunities for pro19 motions to positions with equivalent or bet20 ter compensation for which the complain21 ant is qualified; 

22 ‘‘(iii) compensatory and consequential 

23 damages sufficient to make the complain24 ant whole, (including back pay, prejudg25 ment interest, and other damages); and 


smartinez on DSK6TPTVN1PROD with BILLS
94 

•S 805 IS

1 ‘‘(iv) expungement of all warnings, 

2 reprimands, or derogatory references that 

3 have been placed in paper or electronic 

4 records or databases of any type relating 

5 to the actions by the complainant that 

6 gave rise to the unfavorable personnel ac7 tion, and, at the complainant’s direction, 

8 transmission of a copy of the decision on 

9 the complaint to any person whom the 

10 complainant reasonably believes may have 

11 received such unfavorable information. 

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

13 the Secretary or an administrative law judge, 

14 review board, or court grants an order for relief 

15 under subparagraph (A), the Secretary, admin16 istrative law judge, review board, or court, re17 spectively, shall assess, at the request of the 

18 employee against the employer— 

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

20 ‘‘(ii) costs (including expert witness 

21 fees)) reasonably incurred, as determined 

22 by the Secretary, administrative law judge, 

23 review board, or court, respectively, in con24 nection with bringing the complaint upon 

25 which the order was issued. 


smartinez on DSK6TPTVN1PROD with BILLS
95 

•S 805 IS

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

2 remedies provided for in this subsection may not be 

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

4 of employment, including by any pre-dispute arbitra5 tion agreement or collective bargaining agreement. 

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

7 shall be construed to diminish the rights, privileges, 

8 or remedies of any employee who exercises rights 

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

10 under any collective bargaining agreement. 

11 ‘‘(17) ELECTION OF VENUE.— 

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

13 employer who is located in a State that has a 

14 State plan approved under section 18 may file 

15 a complaint alleging a violation of paragraph 

16 (1) or (2) by such employer with— 

17 ‘‘(i) the Secretary under paragraph 

18 (5); or 

19 ‘‘(ii) a State plan administrator in 

20 such State. 

21 ‘‘(B) REFERRALS.—If— 

22 ‘‘(i) the Secretary receives a complaint 

23 pursuant to subparagraph (A)(i), the Sec24 retary shall not refer such complaint to a 

25 State plan administrator for resolution; or 


smartinez on DSK6TPTVN1PROD with BILLS
96 

•S 805 IS

1 ‘‘(ii) a State plan administrator re2 ceives a complaint pursuant to subpara3 graph (A)(ii), the State plan administrator 

4 shall not refer such complaint to the Sec5 retary for resolution.’’. 

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

7 such Act (29 U.S.C. 666(j)) is amended by inserting be8 fore the period the following: ‘‘, including the history of 

9 violations under section 11(c)’’. 

10 SEC. 703. VICTIMS’ RIGHTS. 

11 The Occupational Safety and Health Act of 1970 (29 

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

13 9 (29 U.S.C. 658) the following: 

14 ‘‘SEC. 9A. VICTIMS’ RIGHTS. 

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

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

17 with respect to an inspection or investigation conducted 

18 under section 8 to— 

19 ‘‘(1) meet with the Secretary regarding the in20 spection or investigation conducted under such sec21 tion before the Secretary’s decision to issue a cita22 tion or take no action; 

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

24 or report, issued as a result of such inspection or inVerDate Mar 15 2010 00:29 Apr 30, 2013 Jkt 029200 PO 00000 Frm 00096 Fmt 6652 Sfmt 6201 E:\BILLS\S805.IS S805

smartinez on DSK6TPTVN1PROD with BILLS
97 

•S 805 IS

1 vestigation, at the same time as the employer re2 ceives such citation or report; 

3 ‘‘(3) be informed of any notice of contest or ad4 dition of parties to the proceedings filed under sec5 tion 10(c); and 

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

7 time or any proceedings, service of pleadings, and 

8 other relevant documents, and an explanation of the 

9 rights of the employer, employee and employee rep10 resentative, and victim to participate in proceedings 

11 conducted under section 10(c). 

12 ‘‘(b) RIGHTS BEFORE THE COMMISSION.—Upon re13 quest, a victim or representative of a victim shall be af14 forded the right with respect to a work-related bodily in15 jury or death to— 

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

17 proceeding before the Commission; 

18 ‘‘(2) receive pleadings and any decisions relat19 ing to the proceedings; and 

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

21 make a statement in accordance with the rules pre22 scribed by the Commission. 

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

24 into an agreement to withdraw or modify a citation issued 

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


smartinez on DSK6TPTVN1PROD with BILLS
98 

•S 805 IS

1 under section 8, the Secretary shall notify a victim or rep2 resentative of a victim and provide the victim or represent3 ative of a victim with an opportunity to appear and make 

4 a statement before the parties conducting settlement nego5 tiations. In lieu of an appearance, the victim or represent6 ative of the victim may elect to submit a letter to the Sec7 retary and the parties. 

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

9 establish procedures— 

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

11 section; and 

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

13 denial of such a right. 

14 ‘‘(e) COMMISSION PROCEDURES AND CONSIDER15 ATIONS.—The Commission shall— 

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

17 of victims to be heard in proceedings before the 

18 Commission; and 

19 ‘‘(2) in rendering any decision, provide due con20 sideration to any statement or information provided 

21 by any victim before the Commission. 

22 ‘‘(f) FAMILY LIAISONS.—The Secretary shall des23 ignate at least 1 employee at each area office of the Occu24 pational Safety and Health Administration to serve as a 

25 family liaison to— 


smartinez on DSK6TPTVN1PROD with BILLS
99 

•S 805 IS

1 ‘‘(1) keep victims informed of the status of in2 vestigations, enforcement actions, and settlement ne3 gotiations; and 

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

5 under this section. 

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

7 means— 

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

9 who has sustained a work-related injury or illness 

10 that is the subject of an inspection or investigation 

11 conducted under section 8; or 

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

13 the Secretary) of a victim described in paragraph 

14 (1), if— 

15 ‘‘(A) the victim dies as a result of a inci16 dent that is the subject of an inspection or in17 vestigation conducted under section 8; or 

18 ‘‘(B) the victim sustains a work-related in19 jury or illness that is the subject of an inspec20 tion or investigation conducted under section 8, 

21 and the victim because of incapacity cannot rea22 sonably exercise the rights under this section.’’. 


smartinez on DSK6TPTVN1PROD with BILLS
100 

•S 805 IS

1 SEC. 704. CORRECTION OF SERIOUS, WILLFUL, OR RE2 PEATED VIOLATIONS PENDING CONTEST AND 

3 PROCEDURES FOR A STAY. 

4 Section 10 of the Occupational Safety and Health Act 

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

6 the following: 

7 ‘‘(d) CORRECTION OF SERIOUS, WILLFUL, OR RE8 PEATED VIOLATIONS PENDING CONTEST AND PROCE9 DURES FOR A STAY.— 

10 ‘‘(1) PERIOD PERMITTED FOR CORRECTION OF

11 SERIOUS, WILLFUL, OR REPEATED VIOLATIONS.— 

12 For each violation which the Secretary designates as 

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

14 the correction of the violation shall begin to run 

15 upon receipt of the citation. 

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

17 filing of a notice of contest by an employer— 

18 ‘‘(A) shall not operate as a stay of the pe19 riod for correction of a violation designated as 

20 serious, willful, or repeated; and 

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

22 for correction of a violation not designated by 

23 the Secretary as serious, willful, or repeated. 

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

25 STAYS.— 


smartinez on DSK6TPTVN1PROD with BILLS
101 

•S 805 IS

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

2 may file with the Commission a motion to stay 

3 a period for the correction of a violation des4 ignated as serious, willful, or repeated. 

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

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

7 filed under subparagraph (A), the Commission 

8 shall consider whether— 

9 ‘‘(i) the employer has demonstrated a 

10 substantial likelihood of success on its con11 test to the citation; 

12 ‘‘(ii) the employer will suffer irrep13 arable harm absent a stay; and 

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

15 health and safety of workers. 

16 ‘‘(C) RULES OF PROCEDURE.—The Com17 mission shall develop rules of procedure for con18 ducting a hearing on a motion filed under sub19 paragraph (A) on an expedited basis. At a min20 imum, such rules shall provide: 

21 ‘‘(i) That a hearing before an admin22 istrative law judge shall occur not later 

23 than 15 days following the filing of the 

24 motion for a stay (unless extended at the 

25 request of the employer), and shall provide 


smartinez on DSK6TPTVN1PROD with BILLS
102 

•S 805 IS

1 for a decision on the motion not later than 

2 15 days following the hearing (unless ex3 tended at the request of the employer). 

4 ‘‘(ii) That a decision of an administra5 tive law judge on a motion for stay is ren6 dered on a timely basis. 

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

8 a decision issued by an administrative law 

9 judge regarding the stay, such party has 

10 the right to file an objection with the Com11 mission not later than 5 days after receipt 

12 of the administrative law judge’s decision. 

13 Within 10 days after receipt of the objec14 tion, a Commissioner, if a quorum is seat15 ed pursuant to section 12(f), shall decide 

16 whether to grant review of the objection. 

17 If, within 10 days after receipt of the ob18 jection, no decision is made on whether to 

19 review the decision of the administrative 

20 law judge, the Commission declines to re21 view such decision, or no quorum is seated, 

22 the decision of the administrative law 

23 judge shall become a final order of the 

24 Commission. If the Commission grants re25 view of the objection, the Commission shall 


smartinez on DSK6TPTVN1PROD with BILLS
103 

•S 805 IS

1 issue a decision regarding the stay not 

2 later than 30 days after receipt of the ob3 jection. If the Commission fails to issue 

4 such decision within 30 days, the decision 

5 of the administrative law judge shall be6 come a final order of the Commission. 

7 ‘‘(iv) For notification to employees or 

8 representatives of affected employees of re9 quests for such hearings and shall provide 

10 affected employees or representatives of af11 fected employees an opportunity to partici12 pate as parties to such hearings.’’. 

13 SEC. 705. CONFORMING AMENDMENTS. 

14 Section 17(d) of the Occupational Safety and Health 

15 Act of 1970 (29 U.S.C. 666(d)) is amended to read as 

16 follows: 

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

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

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

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

21 has not been issued by the Commission under section 

22 10(d)) may be assessed a civil penalty of not more than 

23 $7,000 for each day during which such failure or violation 

24 continues. Any employer who fails to correct any other vio25 lation for which a citation has been issued under section 


smartinez on DSK6TPTVN1PROD with BILLS
104 

•S 805 IS

1 9(a) of this title within the period permitted for its correc2 tion (which period shall not begin to run until the date 

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

4 review proceeding under section 10 initiated by the em5 ployer in good faith and not solely for delay of avoidance 

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

7 than $7,000 for each day during which such failure or vio8 lation continues.’’. 

9 SEC. 706. CIVIL PENALTIES. 

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

11 Safety and Health Act of 1970 (29 U.S.C. 666) is amend12 ed— 

13 (1) in subsection (a)— 

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

15 ‘‘$120,000’’; 

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

17 ‘‘$8,000’’; and 

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

19 determining whether a violation is repeated, the 

20 Secretary shall consider the employer’s history 

21 of violations under this Act and under State oc22 cupational safety and health plans established 

23 under section 18. If such a willful or repeated 

24 violation caused or contributed to the death of 

25 an employee, such civil penalty amounts shall 


smartinez on DSK6TPTVN1PROD with BILLS
105 

•S 805 IS

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

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

3 for each such violation, except that for an em4 ployer with 25 or fewer employees such penalty 

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

6 violation.’’; 

7 (2) in subsection (b)— 

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

9 ‘‘$12,000’’; and 

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

11 such a violation caused or contributed to the 

12 death of an employee, such civil penalty 

13 amounts shall be increased to not more than 

14 $50,000 for each such violation, but not less 

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

16 that for an employer with 25 or fewer employ17 ees such penalty shall not be less than $10,000 

18 for each such violation.’’; 

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

20 inserting ‘‘$12,000’’; 

21 (4) in subsection (d), as amended by section 

22 705, by striking ‘‘$7,000’’ each place it occurs and 

23 inserting ‘‘$12,000’’; 

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

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


smartinez on DSK6TPTVN1PROD with BILLS
106 

•S 805 IS

1 (6) in subsection (j) (as redesignated by para2 graph (5)), by striking ‘‘$7,000’’ and inserting 

3 ‘‘$12,000;’’. 

4 (b) INFLATION ADJUSTMENT.—Section 17 of such 

5 Act is further amended by inserting after subsection (d) 

6 the following: 

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

8 penalties shall be adjusted by the Secretary at least once 

9 during each 4-year period beginning January 1, 2016, to 

10 account for the percentage increase or decrease in the 

11 Consumer Price Index for all urban consumers during 

12 such period.’’. 

13 SEC. 707. CRIMINAL PENALTIES. 

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

15 Safety and Health Act of 1970 (29 U.S.C. 666) (as 

16 amended by sections 705 and 706) is further amended— 

17 (1) by amending subsection (f) to read as fol18 lows: 

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

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

21 of any regulation prescribed under this Act, and that viola22 tion caused or contributed to the death of any employee, 

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

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

25 not more than 10 years, or both, except that if the convicVerDate Mar 15 2010 00:29 Apr 30, 2013 Jkt 029200 PO 00000 Frm 00106 Fmt 6652 Sfmt 6201 E:\BILLS\S805.IS S805

smartinez on DSK6TPTVN1PROD with BILLS
107 

•S 805 IS

1 tion is for a violation committed after a first conviction 

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

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

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

5 20 years, or by both. 

6 ‘‘(2) For the purpose of this subsection, the term ‘em7 ployer’ means, in addition to the definition contained in 

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

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

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

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

12 with title 18, United States Code, or by imprison13 ment for not more than 2 years,’’; 

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

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

16 more than six months,’’ and inserting ‘‘fine in ac17 cordance with title 18, United States Code, or by 

18 imprisonment for not more than 5 years,’’; 

19 (4) by redesignating subsections (j) through 

20 (m) as subsections (k) through (n), respectively; and 

21 (5) by inserting after subsection (i) the fol22 lowing: 

23 ‘‘(j)(1) Any employer who knowingly violates any 

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

25 any regulation prescribed under this Act, and that violaVerDate Mar 15 2010 00:29 Apr 30, 2013 Jkt 029200 PO 00000 Frm 00107 Fmt 6652 Sfmt 6201 E:\BILLS\S805.IS S805

smartinez on DSK6TPTVN1PROD with BILLS
108 

•S 805 IS

1 tion causes or contributes to serious bodily harm to any 

2 employee but does not cause death to any employee, shall, 

3 upon conviction, be punished by a fine in accordance with 

4 title 18, United States Code, or by imprisonment for not 

5 more than 5 years, or by both, except that if the conviction 

6 is for a violation committed after a first conviction of such 

7 person under this subsection or subsection (e), punishment 

8 shall be by a fine in accordance with title 18, United 

9 States Code, or by imprisonment for not more than 10 

10 years, or by both. 

11 ‘‘(2) For the purpose of this subsection, the term ‘em12 ployer’ means, in addition to the definition contained in 

13 section 3, any officer or director. 

14 ‘‘(3) For purposes of this subsection, the term ‘seri15 ous bodily harm’ means bodily injury or illness that in16 volves— 

17 ‘‘(A) a substantial risk of death; 

18 ‘‘(B) protracted unconsciousness; 

19 ‘‘(C) protracted and obvious physical disfigure20 ment; or 

21 ‘‘(D) protracted loss or impairment, either tem22 porary or permanent, of the function of a bodily 

23 member, organ, or mental faculty.’’. 

24 (b) JURISDICTION FOR PROSECUTION UNDER STATE

25 AND LOCAL CRIMINAL LAWS.—Section 17 of such Act (29 


smartinez on DSK6TPTVN1PROD with BILLS
109 

•S 805 IS

1 U.S.C. 666) (as amended by this Act) is further amended 

2 by adding at the end the following: 

3 ‘‘(o) Nothing in this Act shall preclude a State or 

4 local law enforcement agency from conducting criminal 

5 prosecutions in accordance with the laws of such State or 

6 locality.’’. 

7 SEC. 708. PENALTIES. 

8 Section 17(n) of the Occupational Safety and Health 

9 Act of 1970 (as redesignated by section 707(a)(4)) (29 

10 U.S.C. 666(n)) is amended by adding at the end the fol11 lowing: ‘‘Pre-final order interest on such penalties shall 

12 begin to accrue on the date the party contests a citation 

13 issued under this Act, and shall end upon the issuance 

14 of the final order. Such pre-final order interest shall be 

15 calculated at the current underpayment rate determined 

16 by the Secretary of the Treasury pursuant to section 6621 

17 of the Internal Revenue Code of 1986, and shall be com18 pounded daily. Post-final order interest shall begin to ac19 crue 30 days after the date a final order of the Commis20 sion or the court is issued, and shall be charged at the 

21 rate of 8 percent per year.’’. 

22 SEC. 709. EFFECTIVE DATE. 

23 (a) GENERAL RULE.—Except as provided for in sub24 section (b), this title and the amendments made by this 


smartinez on DSK6TPTVN1PROD with BILLS
110 

•S 805 IS

1 title shall take effect not later than 90 days after the date 

2 of the enactment of this Act. 

3 (b) EXCEPTION FOR STATES AND POLITICAL SUB4 DIVISIONS.—The following are exceptions to the effective 

5 date described in subsection (a): 

6 (1) A State that has a State plan approved 

7 under section 18 of the Occupational Safety and 

8 Health Act of 1970 (29 U.S.C. 667) shall amend its 

9 State plan to conform with the requirements of this 

10 Act and the amendments made by this Act not later 

11 than 12 months after the date of the enactment of 

12 this Act. The Secretary of Labor may extend the pe13 riod for a State to make such amendments to its 

14 State plan by not more than 12 months, if the 

15 State’s legislature is not in session during the 12- 

16 month period beginning with the date of the enact17 ment of this Act. Such amendments to the State 

18 plan shall take effect not later than 90 days after 

19 the adoption of such amendments by such State. 

20 (2) This Act and the amendments made by this 

21 Act shall take effect not later than 36 months after 

22 the date of the enactment of this Act with respect 

23 to a workplace of a State, or a political subdivision 


smartinez on DSK6TPTVN1PROD with BILLS
111 

•S 805 IS

1 of a State, that does not have a State plan approved 

2 under such section 18 (29 U.S.C. 667). 

Æ 


smartinez on DSK6TPTVN1PROD with BILLS