II 

112TH CONGRESS 

2D SESSION S. 3443 

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 

JULY 25, 2012 

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

MANCHIN) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To improve compliance with mine and occupational safety 

and health laws, empower workers to raise safety concerns, prevent future mine and other workplace tragedies, 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 2012’’. 


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

2 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. 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. A pattern of recurring noncompliance or accidents. 

Sec. 203. Injunctive authority. 

Sec. 204. Revocation of approval of plans. 

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

mine plan. 

TITLE III—PENALTIES 

Sec. 301. Civil penalties. 

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

Sec. 303. Criminal penalties. 

Sec. 304. Commission review of penalty assessments. 

Sec. 305. Delinquent payments and prejudgment interest. 

TITLE IV—WORKER RIGHTS AND PROTECTIONS 

Sec. 401. Protection from retaliation. 

Sec. 402. Protection from loss of pay. 

TITLE V—MODERNIZING HEALTH AND SAFETY STANDARDS 

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

Sec. 502. Rock dust standards. 

Sec. 503. Atmospheric monitoring systems 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. Certification of personnel. 

TITLE VI—ADDITIONAL MINE SAFETY PROVISIONS 

Sec. 601. Definitions. 

Sec. 602. Assistance to States. 

Sec. 603. Black lung medical reports. 

Sec. 604. Study on workforce needs. 

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


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TITLE VII—AMENDMENTS TO THE OCCUPATIONAL SAFETY AND 

HEALTH ACT OF 1970 

Sec. 701. Enhanced protections from retaliation. 

Sec. 702. Victims’ rights. 

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

and procedures for a stay. 

Sec. 704. Conforming amendments. 

Sec. 705. Civil penalties. 

Sec. 706. Criminal penalties. 

Sec. 707. Penalties. 

Sec. 708. Effective date. 

1 SEC. 2. 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 executive branch agencies 

8 responsible 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), 

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

18 law on June 15, 2006. 

19 (4) As a result of the MINER Act— 


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

2 hours of readily-accessible oxygen supplies for 

3 use in emergencies and additional oxygen sup4 plies every 30 minutes along escape routes; 

5 (B) mines are required to implement emer6 gency response plans and have 2 rescue teams 

7 located within one hour from the mine; 

8 (C) mine operators are subjected to pen9 alties for failing to quickly notify the Mine 

10 Safety and Health Administration about acci11 dents; and 

12 (D) a new grant program was created to 

13 provide mine safety training. 

14 (5) Although the MINER Act made significant 

15 improvements to mine rescue capabilities, Congress 

16 was again reminded of the need to continually im17 prove and vigorously enforce our Federal mine safe18 ty laws when, on April 5, 2010, an explosion ripped 

19 through the Upper Big Branch Mine in Montcoal, 

20 West Virginia, killing 29 brave West Virginia coal 

21 miners and seriously injuring another. This was the 

22 worst coal mining disaster in the United States in 

23 nearly 40 years. 

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

25 impacted by this tragedy—family members, friends, 


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1 coworkers, loved ones, and most importantly, the in2 dividuals who perished in the Upper Big Branch ex3 plosion: Carl ‘‘Pee Wee’’ Acord, Jason Matthew At4 kins, Christopher Lee Bell, Sr., Gregory Steven 

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

6 Clark, Cory Davis, Charles Timothy Davis, Michael 

7 Lee Elswick, William Ildon Griffith, Steven J. 

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

9 Keith Lane, William Roosevelt Lynch, Joe Marcum, 

10 Ronald Lee Maynor, Nicolas D. McCroskey, James 

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

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

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

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

15 Scott, Grover Dale Skeens, Benny Ray Willingham, 

16 and Ricky L. Workman. Another miner, James 

17 Woods, was seriously injured in the explosion and a 

18 second survivor, Tim Blake, has been credited with 

19 heroically attempting to save the lives of his fellow 

20 miners by applying emergency breathing devices to 

21 them while they were unconscious. 

22 (7) Five State, Federal, and independent enti23 ties have conducted investigations into the Upper 

24 Big Branch disaster. Together, these reports con25 clude that the Upper Big Branch disaster was a preVerDate Mar 15 2010 03:05 Jul 27, 2012 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3443.IS S3443

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1 ventable explosion caused by a failure of the oper2 ator to follow known safety standards, including 

3 those that are intended to prevent large-scale explo4 sions. 

5 (8) The United States Attorney for the South6 ern District of West Virginia has launched a crimi7 nal investigation into the Upper Big Branch dis8 aster, which to date has resulted in the conviction or 

9 guilty pleas from three employees or former employ10 ees of the Upper Big Branch mine. 

11 (9) In the last two years, Congress has held 9 

12 hearings into the Upper Big Branch disaster and on 

13 mine safety generally. 

14 (10) Congress enacted, as part of the Dodd15 Frank Wall Street Reform and Consumer Protection 

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

17 amendment requiring publicly-traded mining compa18 nies to disclose serious safety violations to share19 holders, the public, and the Securities and Exchange 

20 Commission. 

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

22 through the Supplemental Appropriations Act, 2010 

23 (Public Law 111–212) to reduce the backlog of ap24 peals at the Federal Mine Safety and Health Review 

25 Commission, investigate the Upper Big Branch disVerDate Mar 15 2010 03:05 Jul 27, 2012 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3443.IS S3443

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1 aster, and purchase emergency response equipment. 

2 During the year that this funding was available, the 

3 Federal Mine Safety and Health Review Commission 

4 was able to hire 6 additional judges and support 

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

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

7 cases that had been specifically targeted for backlog 

8 reduction. 

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

10 Health Administration issued an emergency tem11 porary standard that strengthened rock dusting re12 quirements to reduce the likelihood and severity of 

13 explosions in underground mines. In June 2011, the 

14 agency issued final regulations requiring mine opera15 tors to maintain incombustible content of combined 

16 dust of at least 80 percent in underground mines. 

17 (13) During the 2-year period ending May 

18 2012, the Mine Safety and Health Administration 

19 has increased its enforcement by implementing im20 pact inspections that target violations at unsafe 

21 mines with poor compliance history or specific safety 

22 concerns. As of May 2012, the Administration had 

23 conducted 452 impact inspections resulting in 8,106 

24 citations, 811 orders, and 32 safeguards. 


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1 (14) The Mine Safety and Health Administra2 tion has also— 

3 (A) revised the screening criteria for plac4 ing mines onto pattern of violations status 

5 under section 104(e) of the Federal Mine Safe6 ty and Health Act of 1977 (30 U.S.C. 814(e)), 

7 which subjects unsafe mines to increased en8 forcement and oversight; 

9 (B) created a new online tool to allow op10 erators, miners, and the public to monitor 

11 whether a mine could be subject to a pattern of 

12 violations; and 

13 (C) proposed new regulations that will 

14 eliminate regulatory loopholes that have allowed 

15 unsafe mines to avoid being placed onto pattern 

16 of violations status altogether. 

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

18 since the Federal Mine Safety and Health Act of 

19 1977 (30 U.S.C. 801 et seq.) was enacted, the Mine 

20 Safety and Health Administration placed 2 mines 

21 onto pattern of violations status, and as of the end 

22 of 2011 had notified 94 mines that they faced a po23 tential pattern of violations, which is the regulatory 

24 precursor to being placed onto pattern of violations 

25 status. 


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1 (16) The entities charged with investigating the 

2 Upper Big Branch disaster have made several rec3 ommendations to improve the safety of miners that 

4 can only be accomplished through the legislative 

5 process. At this time, Congress has not passed com6 prehensive mine safety legislation that is critical to 

7 improving the long-term structure of mine safety ef8 forts and providing the maximum level of protection 

9 for our Nation’s miners and their families. 

10 SEC. 3. REFERENCES. 

11 Except in title VII and as otherwise expressly pro12 vided, whenever in this Act an amendment is expressed 

13 as an amendment to a section or other provision, the ref14 erence shall be considered to be made to a section or other 

15 provision of the Federal Mine Safety and Health Act of 

16 1977 (30 U.S.C. 801 et seq.). 

17 TITLE I—ADDITIONAL INSPEC18 TION AND INVESTIGATION 

19 AUTHORITY 

20 SEC. 101. INDEPENDENT ACCIDENT INVESTIGATIONS. 

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

22 813(b)) is amended by striking ‘‘(b) For the purpose’’ and 

23 inserting the following: 

24 ‘‘(b) ACCIDENT INVESTIGATIONS.— 


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1 ‘‘(1) IN GENERAL.—For all accident investiga2 tions under this Act, the Secretary shall— 

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

4 ‘‘(B) determine whether there were viola5 tions of law, mandatory health and safety 

6 standards, or other requirements, and if such 

7 violations are found, issue citations and pen8 alties, and in cases involving possible criminal 

9 actions, refer such matters to the Attorney 

10 General; and 

11 ‘‘(C) make recommendations to avoid any 

12 recurrence. 

13 ‘‘(2) INDEPENDENT ACCIDENT INVESTIGA14 TIONS.— 

15 ‘‘(A) IN GENERAL.—There shall be, in ad16 dition to an accident investigation under para17 graph (1), an independent investigation by an 

18 independent investigation panel (referred to in 

19 this subsection as the ‘Panel’) appointed under 

20 subparagraph (B) for— 

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

22 deaths; or 

23 ‘‘(ii) any accident that is of such se24 verity or scale for potential or actual harm 

25 that, in the opinion of the Secretary of 


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1 Health and Human Services, the accident 

2 merits an independent investigation. 

3 ‘‘(B) APPOINTMENT.— 

4 ‘‘(i) IN GENERAL.—As soon as prac5 ticable after an accident described in sub6 paragraph (A), the Secretary of Health 

7 and Human Services shall appoint 5 mem8 bers for the Panel required under this 

9 paragraph from among individuals who 

10 have expertise in accident investigations, 

11 mine engineering, or mine safety and 

12 health that is relevant to the particular in13 vestigation. 

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

15 include, and be chaired by, a representative 

16 from the Office of Mine Safety and Health 

17 Research, of the National Institute for Oc18 cupational Safety and Health (referred to 

19 in this subsection as ‘NIOSH’). 

20 ‘‘(iii) CONFLICTS OF INTEREST.— 

21 Panel members, and staff and consultants 

22 assisting the Panel with an investigation, 

23 shall be free from conflicts of interest with 

24 regard to the investigation, and be subject 


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1 to the same standards of ethical conduct 

2 for persons employed by the Secretary. 

3 ‘‘(iv) COMPOSITION.—The Secretary 

4 of Health and Human Services shall ap5 point as members of the Panel— 

6 ‘‘(I) 1 operator of a mine or indi7 vidual representing mine operators, 

8 and 

9 ‘‘(II) 1 member of a labor orga10 nization or other representative of 

11 miners, 

12 and may not appoint more than 1 of either 

13 such types of individuals as members of 

14 the Panel. 

15 ‘‘(v) STAFF AND EXPENSES.—The Di16 rector of NIOSH shall designate NIOSH 

17 staff to facilitate the work of the Panel. 

18 The Director may accept as staff personnel 

19 on detail from other Federal agencies or 

20 re-employ annuitants. The detail of per21 sonnel under this paragraph may be on a 

22 non-reimbursable basis, and such detail 

23 shall be without interruption or loss of civil 

24 service status or privilege. The Director of 

25 NIOSH shall have the authority to procure 


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1 on behalf of the Panel such materials, sup2 plies or services, including technical ex3 perts, as requested in writing by a majority 

4 of the Panel. 

5 ‘‘(vi) COMPENSATION AND TRAVEL.— 

6 All members of the Panel who are officers 

7 or employees of the United States shall 

8 serve without compensation in addition to 

9 that received for their services as officers 

10 or employees of the United States. Each 

11 Panel member who is not an officer or em12 ployee of the United States shall be com13 pensated at a rate equal to the daily equiv14 alent of the annual rate of basic pay pre15 scribed for level IV of the Executive Sched16 ule under section 5315 of title 5, United 

17 States Code, for each day (including travel 

18 time) during which such member is en19 gaged in the performance of duties of the 

20 Panel. The members of the Panel shall be 

21 allowed travel expenses, including per diem 

22 in lieu of subsistence, at rates authorized 

23 for employees of agencies under subchapter 

24 1 of chapter 57 of title 5, United States 

25 Code, while away from their homes or regVerDate Mar 15 2010 03:05 Jul 27, 2012 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S3443.IS S3443

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1 ular places of business in the performance 

2 of services for the Panel. 

3 ‘‘(C) DUTIES.—The Panel shall— 

4 ‘‘(i) assess and identify any factors 

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

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

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

12 ‘‘(I) the operator; 

13 ‘‘(II) any contractors or other 

14 persons engaged in mining-related 

15 functions at the site; 

16 ‘‘(III) any State agency with 

17 oversight responsibilities; 

18 ‘‘(IV) any agency or office within 

19 the Department of Labor; or 

20 ‘‘(V) any other person or entity 

21 (including equipment manufacturers); 

22 ‘‘(iii) review the determinations and 

23 recommendations by the Secretary under 

24 paragraph (1); 

25 ‘‘(iv) prepare a report that— 


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1 ‘‘(I) includes the findings regard2 ing the causal factors described in 

3 clauses (i) and (ii); 

4 ‘‘(II) identifies any strengths and 

5 weaknesses in the Secretary’s inves6 tigation; and 

7 ‘‘(III) includes recommendations, 

8 including interim recommendations 

9 where appropriate, to industry, labor 

10 organizations, State and Federal 

11 agencies, or Congress, regarding pol12 icy, regulatory, enforcement, adminis13 trative, or other changes, which in the 

14 judgment of the Panel, would prevent 

15 a recurrence at other mines; and 

16 ‘‘(v) publish such findings and rec17 ommendations (excluding any portions 

18 which the Attorney General requests that 

19 the Secretary withhold in relation to a 

20 criminal referral) and hold public meetings 

21 to inform the mining community and fami22 lies of affected miners of the Panel’s find23 ings and recommendations. 

24 ‘‘(D) HEARINGS; APPLICABILITY OF CER25 TAIN FEDERAL LAW.—The Panel shall have the 


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1 authority to conduct public hearings or meet2 ings, but shall not be subject to the Federal Ad3 visory Committee Act (5 U.S.C. App.). All pub4 lic hearings of the Panel shall be subject to the 

5 requirements under section 552b of title 5, 

6 United States Code. 

7 ‘‘(E) MEMORANDUM OF UNDER8 STANDING.—Not later than 90 days after the 

9 date of enactment of the Robert C. Byrd Mine 

10 and Workplace Safety and Health Act of 2012, 

11 the Secretary of Labor and the Secretary of 

12 Health and Human Services shall conclude and 

13 publically issue a memorandum of under14 standing that— 

15 ‘‘(i) outlines administrative arrange16 ments which will facilitate a coordination 

17 of efforts between the Secretary of Labor 

18 and the Panel, ensures that the Secretary’s 

19 investigation under paragraph (1) is not 

20 delayed or otherwise compromised by the 

21 activities of the Panel, and establishes a 

22 process to resolve any conflicts between 

23 such investigations; 

24 ‘‘(ii) ensures that Panel members or 

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1 tigation activities (such as mine inspections 

2 and interviews) related to the Secretary of 

3 Labor’s investigation and will have full ac4 cess to documents that are assembled or 

5 produced in such investigation, and en6 sures that the Secretary of Labor will 

7 make all of the authority available to such 

8 Secretary under this section, including sub9 poena authority, to obtain information and 

10 witnesses which may be requested by such 

11 Panel; and 

12 ‘‘(iii) establishes such other arrange13 ments as are necessary to implement this 

14 paragraph. 

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

16 days after the date of enactment of the Robert 

17 C. Byrd Mine and Workplace Safety and 

18 Health Act of 2012, the Secretary of Health 

19 and Human Services shall establish procedures 

20 to ensure the consistency and effectiveness of 

21 Panel investigations. In establishing such proce22 dures, such Secretary shall consult with inde23 pendent safety investigation agencies, sectors of 

24 the mining industry, representatives of miners, 

25 families of miners involved in fatal accidents, 


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1 State mine safety agencies, and mine rescue or2 ganizations. Such procedures shall include— 

3 ‘‘(i) authority for the Panel to use evi4 dence, samples, interviews, data, analyses, 

5 findings, or other information gathered by 

6 the Secretary of Labor, as the Panel deter7 mines valid; 

8 ‘‘(ii) provisions to ensure confiden9 tiality if requested by any witness, to the 

10 extent permitted by law, and prevent con11 flicts of interest in witness representation; 

12 and 

13 ‘‘(iii) provisions for preservation of 

14 public access to the Panel’s records 

15 through the Secretary of Health and 

16 Human Services. 

17 ‘‘(G) AUTHORIZATION OF APPROPRIA18 TIONS.—There is authorized to be appropriated 

19 to carry out this subsection such sums as may 

20 be necessary. 

21 ‘‘(3) POWERS AND PROCESSES.—For the pur22 pose’’. 

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

24 (30 U.S.C. 958(a)) is amended by inserting after ‘‘501,’’ 

25 the following: ‘‘the status of implementation of recVerDate Mar 15 2010 03:05 Jul 27, 2012 Jkt 019200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S3443.IS S3443

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1 ommendations from each independent investigation panel 

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

3 SEC. 102. SUBPOENA AUTHORITY AND MINER RIGHTS DUR4 ING INSPECTIONS AND INVESTIGATIONS. 

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

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

7 the following: 

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

9 of enabling the Secretary to perform any of the 

10 functions under this Act, the Secretary or the Sec11 retary’s designee, may sign and issue subpoenas for 

12 the attendance and testimony of witnesses and the 

13 production of information, including all relevant 

14 data, papers, books, documents, and items of phys15 ical evidence, and administer oaths. Witnesses sum16 moned shall be paid the same fees that are paid wit17 nesses in the courts of the United States. In car18 rying out inspections and investigations under this 

19 subsection, authorized representatives of the Sec20 retary and attorneys representing the Secretary are 

21 authorized to question any individual privately. 

22 Under this section, any individual who is willing to 

23 speak with or provide a statement to such author24 ized representatives or attorneys representing the 

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1 ment, or knowledge of the operator or the operator’s 

2 agents or attorneys. The Secretary shall keep the 

3 identity of an individual providing such a statement 

4 confidential to the extent permitted by law. Nothing 

5 in this paragraph prevents any individual from being 

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

7 SEC. 103. DESIGNATION OF MINER REPRESENTATIVE. 

8 Section 103(f) (30 U.S.C. 813(f)) is amended by in9 serting before the last sentence the following: ‘‘If any 

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

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

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

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

14 representative. If any miner is not currently working in 

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

16 would be currently working in such mine but for such acci17 dent, such miner may designate such a representative.’’. 

18 SEC. 104. ADDITIONAL AMENDMENTS RELATING TO IN19 SPECTIONS, INVESTIGATIONS, AND RECORD20 KEEPING. 

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

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

23 sentence the following: ‘‘Such inspections shall be con24 ducted during the various shifts and days of the week dur25 ing which miners are normally present in the mine to enVerDate Mar 15 2010 03:05 Jul 27, 2012 Jkt 019200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\S3443.IS S3443

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1 sure that the protections of this Act are afforded to all 

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

3 section of a mine occurs during a shift on which a mecha4 nized mining unit is producing, or customarily produces, 

5 coal on such section, then such inspection shall be con6 ducted while such unit is producing coal at a rate that 

7 is reasonably consistent with the average rate of produc8 tion at the mine during the previous quarter.’’. 

9 (b) INCREASED TARGETED INSPECTIONS.—Section 

10 103(a) (as amended by subsection (a)) is further amended 

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

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

13 that the operator has not properly maintained a record 

14 of all violations of this Act (including any mandatory 

15 health or safety standard or regulation promulgated under 

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

17 the 3-month period following such determination, a min18 imum of one spot inspection by his authorized representa19 tive of all or part of such mine, during every 15 working 

20 days and at irregular intervals. Such inspections shall be 

21 in addition to any other inspections required under this 

22 section.’’. 

23 (c) CONFLICT OF INTEREST IN THE REPRESENTA24 TION OF MINERS.—Section 103(a) (30 U.S.C. 813(a)) is 

25 further amended by adding at the end the following: ‘‘DurVerDate Mar 15 2010 03:05 Jul 27, 2012 Jkt 019200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:\BILLS\S3443.IS S3443

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1 ing inspections and investigations under this section, and 

2 during any litigation under this Act, no attorney shall rep3 resent or purport to represent both the operator of a coal 

4 or other mine and any other individual, unless such indi5 vidual has knowingly and voluntarily waived all actual and 

6 reasonably foreseeable conflicts of interest resulting from 

7 such representation. The Secretary is authorized to take 

8 such actions as the Secretary considers appropriate to as9 certain whether such individual has knowingly and volun10 tarily waived all such conflicts of interest. If the Secretary 

11 finds that such an individual cannot be represented ade12 quately by such an attorney due to such conflicts of inter13 est, the Secretary may petition the appropriate United 

14 States District Court which shall have jurisdiction to dis15 qualify such attorney as counsel to such individual in the 

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

17 of an ongoing related civil action or as a miscellaneous 

18 action.’’. 

19 (d) INJURY AND ILLNESS REPORTING.—Section 

20 103(d) (30 U.S.C. 813(d)) is amended by striking the last 

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

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

23 include man-hours worked and occupational injuries and 

24 illnesses, and shall be maintained separately for each mine 

25 and be reported at a frequency determined by the SecVerDate Mar 15 2010 03:05 Jul 27, 2012 Jkt 019200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 E:\BILLS\S3443.IS S3443

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1 retary, but at least annually. Operators shall be respon2 sible for reporting on all miners working at such mine re3 gardless of their employer, except that independent con4 tractors (within the meaning of section 3(d)) shall only 

5 be responsible for reporting on miners in their employ or 

6 under their direction or authority.’’. 

7 (e) ORDERS FOLLOWING AN ACCIDENT.—Section 

8 103(k) (30 U.S.C. 813(k)) is amended by striking ‘‘, when 

9 present,’’. 

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

11 U.S.C. 813) is amended by adding at the end the fol12 lowing: 

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

14 publicly available electronic database containing current 

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

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

17 searchable, and shall have the ability to provide aggregate 

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

19 a mine and the ability to compare safety data between 

20 mines, operators, and controllers.’’. 

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

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

23 ‘‘(m)(1) To the maximum extent practicable, when 

24 the Secretary identifies a mine as having a significant or 

25 persistent safety or health problem— 


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1 ‘‘(A) an authorized representative of the Sec2 retary shall request a meeting with the appropriate 

3 State-level regulator to share the concerns of the 

4 Secretary when the Secretary determines that such 

5 actions would improve conditions of the mine; and 

6 ‘‘(B) the Secretary and the State-level regulator 

7 may develop a joint plan designed to correct the 

8 identified problem. 

9 ‘‘(2) Nothing in this subsection shall be construed to 

10 require the Secretary to take action that could delay or 

11 compromise any civil or criminal enforcement action or 

12 proceeding.’’. 

13 (h) OUTSIDE EXPERTS IN INVESTIGATIONS.—Sec14 tion 112 (30 U.S.C. 822) is amended— 

15 (1) by striking ‘‘Except as provided’’ and in16 serting the following: 

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

18 as provided’’; and 

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

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

21 Attorney General shall designate 1 or more full-time em22 ployees with expertise in the mining industry to coordinate 

23 with the Department of Labor and assist United States 

24 attorneys in the investigation and prosecution of criminal 

25 violations under this Act.’’. 


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1 TITLE II—ENHANCED 

2 ENFORCEMENT AUTHORITY 

3 SEC. 201. SIGNIFICANT AND SUBSTANTIAL VIOLATIONS. 

4 Section 104(d)(1) (30 U.S.C. 814(d)(1)) is amend5 ed— 

6 (1) in the first sentence— 

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

8 safety standard’’ and inserting ‘‘any provision 

9 of this Act, including any mandatory health or 

10 safety standard or regulation promulgated 

11 under this Act’’; and 

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

13 safety standards’’ and inserting ‘‘such provi14 sions, regulations, or mandatory health or safe15 ty standards’’; 

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

17 mandatory health or safety standard’’ and inserting 

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

19 health or safety standard or regulation promulgated 

20 under this Act,’’; and 

21 (3) by inserting after the first sentence the fol22 lowing: ‘‘For purposes of this Act, a violation of a 

23 provision of this Act, including any mandatory 

24 health or safety standard or regulation promulgated 

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1 cantly and substantially contribute to the cause and 

2 effect of a safety or health hazard if there is a rea3 sonable possibility that such violation could result in 

4 injury, illness, or death.’’. 

5 SEC. 202. A PATTERN OF RECURRING NONCOMPLIANCE OR 

6 ACCIDENTS. 

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

8 as follows: 

9 ‘‘(e) PATTERN OF RECURRING NONCOMPLIANCE OR

10 ACCIDENTS.— 

11 ‘‘(1) PATTERN STATUS.— 

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

13 subsection, an operator of a coal or other mine 

14 shall be in pattern status if the operator has, 

15 as determined based on the regulations promul16 gated under paragraph (8)— 

17 ‘‘(i) a pattern of— 

18 ‘‘(I) citations for significant and 

19 substantial violations; 

20 ‘‘(II) citations and withdrawal or21 ders issued for unwarrantable failure 

22 to comply with mandatory health and 

23 safety standards under section 104(d); 


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1 ‘‘(III) citations for flagrant viola2 tions within the meaning of section 

3 110(b); 

4 ‘‘(IV) withdrawal orders issued 

5 under any other section of this Act; or 

6 ‘‘(V) accidents, injuries, or ill7 nesses; or 

8 ‘‘(ii) a pattern consisting of any com9 bination of citations, orders, accidents, in10 juries, or illnesses described in subclauses 

11 (I) through (V). 

12 ‘‘(B) MITIGATING CIRCUMSTANCES.—Not13 withstanding subparagraph (A), if the Sec14 retary, after conducting an assessment of a coal 

15 or other mine that otherwise qualifies for pat16 tern status, certifies that there are mitigating 

17 circumstances wherein the operator has elimi18 nated any elevated risk to the health or safety 

19 of miners and has taken sufficient measures to 

20 ensure such elevated risk will not recur, the 

21 Secretary may deem such mine to not be in pat22 tern status under this subsection. The Sec23 retary shall issue any such certification of such 

24 mitigating circumstances that would preclude 

25 the placement of a mine in pattern status as a 


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1 written finding, which shall, not later than 10 

2 days after the certification is made, be— 

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

4 and 

5 ‘‘(ii) transmitted to the Committee on 

6 Education and the Workforce of the House 

7 of Representatives and the Committee on 

8 Health, Education, Labor, and Pensions of 

9 the Senate. 

10 ‘‘(2) ACTIONS FOLLOWING PLACEMENT OF

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

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

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

14 the mine is being placed in pattern status; 

15 ‘‘(B) issue an order requiring such oper16 ator to cause all persons to be withdrawn from 

17 such mine, except those persons referred to in 

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

19 Secretary issued under this subsection; 

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

21 paragraph (3) to such operator; and 

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

23 inspections of such mine required under section 

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1 ground mine and 4 per year for a surface mine 

2 while the mine is in pattern status. 

3 Notice advising operators that they face potential 

4 placement in pattern status shall not be a require5 ment for issuing a withdrawal order to operators 

6 under this subsection. 

7 ‘‘(3) REMEDIATION ORDER.— 

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

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

10 may require the operator to carry out one or 

11 more of the following requirements, pursuant to 

12 a timetable for commencing and completing 

13 such actions or as a condition of miners reen14 tering the mine: 

15 ‘‘(i) Provide specified training, includ16 ing training not otherwise required under 

17 this Act. 

18 ‘‘(ii) Institute and implement an effec19 tive health and safety management pro20 gram approved by the Secretary, includ21 ing— 

22 ‘‘(I) the employment of safety 

23 professionals, certified persons, and 

24 adequate numbers of personnel for the 


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1 mine, as may be required by the Sec2 retary; 

3 ‘‘(II) specific inspection, record4 keeping, reporting and other require5 ments for the mine as the Secretary 

6 may establish; and 

7 ‘‘(III) other requirements to en8 sure compliance and to protect the 

9 health and safety of miners or prevent 

10 accidents or injuries as the Secretary 

11 may determine are necessary. 

12 ‘‘(iii) Facilitate any effort by the Sec13 retary to communicate directly with miners 

14 employed at the mine outside the presence 

15 of the mine operators or its agents, for the 

16 purpose of obtaining information about 

17 mine conditions, health and safety prac18 tices, and advising miners of their rights 

19 under this Act. 

20 ‘‘(B) MODIFICATION OF AND FAILURE TO

21 COMPLY WITH REMEDIATION ORDER.—The Sec22 retary may modify the remediation order, as 

23 necessary, to protect the health and safety of 

24 miners. If the mine operator fails to fully com25 ply with the remediation order during the time 


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1 a mine is in pattern status, the Secretary shall 

2 reinstate the withdrawal order under paragraph 

3 (2)(B). 

4 ‘‘(C) EXTENSION OF DEADLINES.—An ex5 tension of a deadline under the remediation 

6 order may be granted on a temporary basis and 

7 only upon a showing that the operator took all 

8 feasible measures to comply with the order and 

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

10 comply is beyond the control of the operator. 

11 ‘‘(4) CONDITIONS FOR LIFTING WITHDRAWAL

12 ORDER.—A withdrawal order issued under para13 graph (2)(B) shall not be lifted until the Secretary 

14 verifies that— 

15 ‘‘(A) any and all violations or other condi16 tions in the mine identified in the remediation 

17 order have been or are being fully abated or 

18 corrected as outlined in the remediation order; 

19 and 

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

21 actions under the remediation order that are re22 quired for reopening the mine. 

23 ‘‘(5) PERFORMANCE EVALUATION.— 

24 ‘‘(A) PERFORMANCE BENCHMARKS.—The 

25 Secretary shall evaluate the performance of 


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1 each operator whose mine is in pattern status 

2 every 90 days during which the mine is pro3 ducing and determine if, for such 90-day pe4 riod— 

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

6 significant and substantial violations— 

7 ‘‘(I) are, on average, in the top 

8 performing 35th percentile of such 

9 rates, respectively, for all mines of 

10 similar size and type; or 

11 ‘‘(II) have been reduced by 70 

12 percent since such mine was placed on 

13 pattern status; 

14 ‘‘(ii) the operator’s accident and in15 jury rates are, on average, in the top per16 forming 35th percentile of such rates, re17 spectively, for all mines of similar size and 

18 type; and 

19 ‘‘(iii) no citation or withdrawal order 

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

21 withdrawal order for imminent danger 

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


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1 ‘‘(B) REISSUANCE OF WITHDRAWAL OR2 DERS.—If an operator being evaluated fails to 

3 achieve the performance benchmarks described 

4 in subparagraph (A), the Secretary may reissue 

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

6 remedy any recurring conditions that led to pat7 tern status under this subsection, and may 

8 modify the remediation order, as necessary, to 

9 protect the health and safety of miners. 

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

11 ‘‘(A) PERFORMANCE BENCHMARKS.—The 

12 Secretary shall remove an operator of a coal or 

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

14 period during which the mine is producing— 

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

16 significant and substantial violations— 

17 ‘‘(I) are, on average, in the top 

18 performing 25th percentile of such 

19 rates, respectively, for all mines of 

20 similar size and type; or 

21 ‘‘(II) have been reduced by 80 

22 percent since such mine was placed on 

23 pattern status; 

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1 forming 25th percentile of such rates, re2 spectively, for all mines of similar size and 

3 type; and 

4 ‘‘(iii) no citation or withdrawal orders 

5 for violations under section 104(d), no 

6 withdrawal orders for imminent danger 

7 under section 107 arising from a signifi8 cant and substantial violation, and no fla9 grant violations within the meaning of sec10 tion 110(b), were issued for such mine. 

11 ‘‘(B) CONTINUATION OF PATTERN STA12 TUS.—Should the mine operator fail to meet 

13 the performance benchmarks described in sub14 paragraph (A), the Secretary shall extend the 

15 mine’s placement in pattern status until such 

16 benchmarks are achieved. 

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

18 this subsection is contested, the review of such order 

19 shall be conducted on an expedited basis, in accord20 ance with section 105(d). 

21 ‘‘(8) REGULATIONS; INFORMATION ON PER22 FORMANCE.— 

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

24 days after the date of enactment of the Robert 

25 C. Byrd Mine and Workplace Safety and 


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1 Health Act of 2012, the Secretary shall issue 

2 interim final regulations that shall define— 

3 ‘‘(i) the threshold criteria to trigger 

4 pattern status under paragraph (1) and 

5 cause a withdrawal order to be issued or 

6 reissued; and 

7 ‘‘(ii) the performance benchmarks de8 scribed in paragraphs (5)(A) and (6)(A). 

9 ‘‘(B) THRESHOLD CRITERIA.—In estab10 lishing threshold criteria to trigger pattern sta11 tus for mines with significantly poor compliance 

12 that contributes to unsafe or unhealthy condi13 tions, the Secretary— 

14 ‘‘(i) shall consider frequency and rates 

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

16 and rates of reportable accidents and inju17 ries within the preceding 180-day period; 

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

19 type, production levels, number of miners, 

20 hours worked by miners, number of mecha21 nized mining units (or similar production 

22 characteristics), and the designation of a 

23 representative of miners at the mine; 

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

25 of citations, violations, orders, and other 


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1 enforcement actions, or rates of reportable 

2 accidents and injuries, over any period de3 termined relevant by the Secretary; 

4 ‘‘(iv) may assign weight to various 

5 types of citations, orders, accidents, inju6 ries, illnesses, or other factors; and 

7 ‘‘(v) may include other factors the 

8 Secretary may determine appropriate to 

9 protect the safety and health of miners. 

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

11 2 years after the date of enactment of the Rob12 ert C. Byrd Mine and Workplace Safety and 

13 Health Act of 2012, the Secretary shall promul14 gate final regulations implementing this para15 graph. 

16 ‘‘(D) GOVERNMENT ACCOUNTABILITY OF17 FICE STUDY.—Not later than 2 years after the 

18 promulgation of the final regulations under sub19 paragraph (C), the Comptroller General of the 

20 United States shall study the effectiveness of 

21 the threshold criteria established in this para22 graph and issue to the Committee on Health, 

23 Education, Labor, and Pensions of the Senate 

24 and to the Committee on Education and the 

25 Workforce of the House of Representatives a 


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1 report on the results of the study. In con2 ducting this study, the Comptroller General 

3 shall consult with all appropriate stakeholders. 

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

5 The Secretary shall establish and maintain a pub6 lically available electronic database containing the 

7 data used to determine pattern status for all coal or 

8 other mines. Such database shall be searchable, shall 

9 have the capacity to provide comparative data about 

10 the health and safety at mines of similar sizes and 

11 types. The Secretary shall also make publicly avail12 able— 

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

14 places in pattern status, updated not less fre15 quently than quarterly; and 

16 ‘‘(B) the metrics, including percentile in17 formation, used for the purposes of the per18 formance benchmarks and threshold criteria de19 scribed in paragraphs (5), (6), and (8). 

20 ‘‘(10) OPERATOR FEES FOR ADDITIONAL IN21 SPECTIONS.— 

22 ‘‘(A) ASSESSMENT AND COLLECTION.—Be23 ginning 120 days after the date of enactment of 

24 the Robert C. Byrd Mine and Workplace Safety 

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1 sess and collect fees, in accordance with this 

2 paragraph, from each coal or other mine in pat3 tern status for the costs of additional inspec4 tions under this subsection. The Secretary shall 

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

6 against coal or other mines of varying types 

7 and sizes, and shall collect and assess amounts 

8 under this paragraph based on the schedule. 

9 ‘‘(B) MINES IN PATTERN STATUS INSPEC10 TION FUND.—There is established in the Treas11 ury of the United States a separate account for 

12 the deposit of fees collected under this para13 graph to be known as the Mines in Pattern Sta14 tus Inspection Fund. The Secretary shall de15 posit any fees collected pursuant to subpara16 graph (A) into the fund. 

17 ‘‘(C) USE.—Amounts in the Mines in Pat18 tern Status Inspection Fund shall be available 

19 to the Secretary, as provided in subparagraph 

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

21 additional inspections required under paragraph 

22 (2)(D). 

23 ‘‘(D) AUTHORIZATION OF APPROPRIA24 TIONS.—In addition to any other amounts ap25 propriated, there is authorized to be approVerDate Mar 15 2010 03:05 Jul 27, 2012 Jkt 019200 PO 00000 Frm 00038 Fmt 6652 Sfmt 6201 E:\BILLS\S3443.IS S3443

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1 priated from the Mines in Pattern Status In2 spection Fund to the Assistant Secretary for 

3 Mine Safety and Health for each fiscal year in 

4 which fees are collected under subparagraph 

5 (A) an amount equal to the total amount col6 lected during the previous fiscal year from fees 

7 assessed pursuant to this paragraph. Such 

8 amounts are authorized to remain available 

9 until expended. 

10 ‘‘(E) CREDITING AND AVAILABILITY OF

11 FEES.—Fees authorized and collected under 

12 this paragraph shall be available for obligation 

13 only to the extent and in the amount provided 

14 in advance in appropriations Acts.’’. 

15 SEC. 203. INJUNCTIVE AUTHORITY. 

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

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

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

19 of the Secretary constitutes a continuing hazard to the 

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

21 or of mandatory health and safety standards or regula22 tions under this Act.’’. 

23 SEC. 204. REVOCATION OF APPROVAL OF PLANS. 

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


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1 (1) by redesignating subsection (d) as sub2 section (e); and 

3 (2) by inserting after subsection (c) the fol4 lowing: 

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

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

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

8 that was approved by the Secretary under this Act 

9 is based on inaccurate information or that cir10 cumstances that existed when such plan was ap11 proved have materially changed and that continued 

12 operation of such mine under such plan constitutes 

13 a hazard to the safety or health of miners, the Sec14 retary shall revoke the approval of such program or 

15 plan. 

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

17 of the approval of a program or plan under sub18 section (a), the Secretary may immediately issue an 

19 order requiring the operator to cause all persons, ex20 cept those persons referred to in section 104(c), to 

21 be withdrawn from such mine, and to be prohibited 

22 from entering such mine, until the operator has sub23 mitted and the Secretary has approved a new plan.’’. 


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1 SEC. 205. CHALLENGING A DECISION TO APPROVE, MOD2 IFY, OR REVOKE A COAL OR OTHER MINE 

3 PLAN. 

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

5 (30 U.S.C. 815(e)) is amended by adding at the end the 

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

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

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

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

10 the challenging party establishes that such decision was 

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

12 not in accordance with law.’’. 

13 TITLE III—PENALTIES 

14 SEC. 301. CIVIL PENALTIES. 

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

16 (30 U.S.C. 820(a)(1)) is amended— 

17 (1) by inserting ‘‘including any regulation pro18 mulgated under this Act,’’ after ‘‘this Act,’’; and 

19 (2) by striking ‘‘violation.’’ and inserting ‘‘viola20 tion, except that, in the case of a significant and 

21 substantial violation, the penalty shall be not more 

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

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

24 (30 U.S.C. 820(b)) is amended— 

25 (1) in paragraph (2), by inserting ‘‘, a change 

26 in ventilation in a coal or other mine that has not 


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1 received prior approval from the Secretary, or a fail2 ure to keep the records required for the mine by the 

3 Secretary in accordance with this Act, including 

4 keeping a record of all violations of this Act (includ5 ing any mandatory health or safety standard or reg6 ulation promulgated under this Act)’’ before the pe7 riod at the end; and 

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

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

10 an operator of a coal or other mine that is in pattern sta11 tus under section 104(e) and that fails to meet the per12 formance benchmarks set forth by the Secretary under 

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

14 mine following the first performance review shall be as15 sessed an increased civil penalty for any violation of this 

16 Act, including any mandatory health or safety standard 

17 or regulation promulgated under this Act. Such increased 

18 penalty shall be twice the amount that would otherwise 

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

20 regulations promulgated under this Act, subject to the 

21 maximum civil penalty established for the violation under 

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

23 mine that occur during the period beginning after the 

24 failed performance review following the first performance 

25 review, and ending when the Secretary determines at a 


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1 subsequent performance review that the mine meets the 

2 performance benchmarks.’’. 

3 (c) CIVIL PENALTY FOR RETALIATION.—Section 

4 110(a) (30 U.S.C. 820(a)) is further amended— 

5 (1) by redesignating paragraph (4) as para6 graph (5); and 

7 (2) by inserting after paragraph (3) the fol8 lowing: 

9 ‘‘(4) If any person violates section 105(c), the Sec10 retary shall propose, and the Commission shall assess, a 

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

12 $100,000 for the first occurrence of such violation, and 

13 not less than $20,000 or more than $200,000 for any sub14 sequent violation, during any 3-year period.’’. 

15 SEC. 302. CIVIL AND CRIMINAL LIABILITY OF OFFICERS, DI16 RECTORS, AND AGENTS. 

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

18 as follows: 

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

20 DIRECTORS, AND AGENTS.—Whenever an operator vio21 lates a provision of this Act, including any mandatory 

22 health or safety standard or regulation promulgated under 

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

24 with any order issued under this Act or any order incor25 porated in a final decision issued under this Act, any diVerDate Mar 15 2010 03:05 Jul 27, 2012 Jkt 019200 PO 00000 Frm 00043 Fmt 6652 Sfmt 6201 E:\BILLS\S3443.IS S3443

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1 rector, officer, or agent of such operator who knowingly 

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

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

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

5 be subject to the same civil penalties, fines, and imprison6 ment that may be imposed upon a person under this sec7 tion.’’. 

8 SEC. 303. CRIMINAL PENALTIES. 

9 (a) INTENT REQUIREMENTS FOR CRIMINAL PEN10 ALTY STANDARDS.—Section 110(d) (30 U.S.C. 820(d)) is 

11 amended— 

12 (1) by striking ‘‘willfully’’ and inserting ‘‘know13 ingly’’; 

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

15 for not more than one year’’ and inserting 

16 ‘‘$1,000,000, or by imprisonment for not more than 

17 5 years’’; and 

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

19 for not more than five years’’ and inserting 

20 ‘‘$2,000,000, or by imprisonment for not more than 

21 10 years’’. 

22 (b) CRIMINAL PENALTY FOR RETALIATION.—Section 

23 110(d) is further amended— 

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

25 and 


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

2 ‘‘(2) Whoever knowingly takes any action that is di3 rectly or indirectly harmful to any person, including action 

4 that interferes with the lawful employment or livelihood 

5 of any person, because such person has provided an au6 thorized representative of the Secretary or another law en7 forcement officer with any information related to the exist8 ence of a health or safety violation or an unhealthful or 

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

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

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

12 (c) ADVANCE NOTICE OF INSPECTIONS.— 

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

14 820(e)) is amended— 

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

16 ‘‘(1) Unless’’; and 

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

18 ‘‘(2) Unless otherwise authorized by this Act, any op19 erator, agent or contractor of any operator, miner, inspec20 tor, employee of the Administration, or State mine inspec21 tor, that knowingly gives, causes to give, or attempts to 

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

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

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

25 or both.’’. 


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1 (2) POSTING OF ADVANCE NOTICE PEN2 ALTIES.—Section 109 (30 U.S.C. 819) is amended 

3 by adding at the end the following: 

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

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

6 bulletin board described in subsection (a) and in a con7 spicuous place near each staffed entrance onto the mine 

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

9 prescribed by the Secretary— 

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

11 to give or cause to give advance notice of any inspec12 tion to be conducted under this Act is unlawful pur13 suant to section 110(e); and 

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

15 under such subsection.’’. 

16 SEC. 304. COMMISSION REVIEW OF PENALTY ASSESS17 MENTS. 

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

19 striking ‘‘In assessing civil monetary penalties, the Com20 mission shall consider’’ and inserting the following: ‘‘In 

21 any review of a citation and proposed penalty assessment 

22 contested by an operator, the Commission shall assess not 

23 less than the penalty derived by using the same method24 ology (including any point system) prescribed in regula25 tions under this Act, so as to ensure consistency in operVerDate Mar 15 2010 03:05 Jul 27, 2012 Jkt 019200 PO 00000 Frm 00046 Fmt 6652 Sfmt 6201 E:\BILLS\S3443.IS S3443

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1 ator penalty assessments, except that the Commission may 

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

3 from the utilization of such methodology if the Commis4 sion finds that there are extraordinary circumstances. If 

5 there is no such methodology prescribed for a citation or 

6 there are such extraordinary circumstances, the Commis7 sion shall assess the penalty by considering’’. 

8 SEC. 305. DELINQUENT PAYMENTS AND PREJUDGMENT IN9 TEREST. 

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

11 (30 U.S.C. 820(j)) is amended by striking the second and 

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

13 order interest on such penalties shall begin to accrue on 

14 the date the operator contests a citation issued under this 

15 Act, including any mandatory health or safety standard 

16 or regulation promulgated under this Act, and shall end 

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

18 interest shall be calculated at the current underpayment 

19 rate determined by the Secretary of the Treasury pursu20 ant to section 6621 of the Internal Revenue Code of 1986, 

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

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

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

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

25 (b) ENSURING PAYMENT OF PENALTIES.— 


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

2 820) is further amended— 

3 (A) by redesignating subsection (l) as sub4 section (m); and 

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

6 following: 

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

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

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

10 penalty assessment that has become a final order of 

11 the Commission or a court within 90 days after such 

12 assessment became a final order, the Secretary shall 

13 send the operator a letter advising the operator of 

14 the consequences under this subsection of such fail15 ure to pay. The letter shall also advise the operator 

16 of the opportunity to enter into or modify a payment 

17 plan with the Secretary based upon a demonstrated 

18 inability to pay, the procedure for entering into such 

19 plan, and the consequences of not entering into or 

20 not complying with such plan. 

21 ‘‘(2) WITHDRAWAL ORDERS FOLLOWING FAIL22 URE TO PAY.—If an operator that receives a letter 

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

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1 ment plan with the Secretary, the Secretary shall 

2 issue an order requiring such operator to cause all 

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

4 to be withdrawn from, and to be prohibited from en5 tering, the mine that is covered by the final order 

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

7 such assessment in full (including interest and ad8 ministrative costs) or enters into a payment plan 

9 with the Secretary. If such operator enters into a 

10 payment plan with the Secretary and at any time 

11 fails to comply with the terms specified in such pay12 ment plan, the Secretary shall issue an order requir13 ing such operator to cause all persons, except those 

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

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

16 be prohibited from entering such mine, until the op17 erator rectifies the noncompliance with the payment 

18 plan in the manner specified in such payment 

19 plan.’’. 

20 (2) APPLICABILITY AND EFFECTIVE DATE.— 

21 The amendments made by paragraph (1) shall apply 

22 to all unpaid civil penalty assessments under the 

23 Federal Mine Safety and Health Act of 1977 (30 

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

25 penalty assessment that became a final order of the 


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1 Commission or a court before the date of enactment 

2 of this Act, the time periods under section 110(n) of 

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

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

5 beginning on the date of enactment of this Act in6 stead of on the date of the final order. 

7 TITLE IV—WORKER RIGHTS AND 

8 PROTECTIONS 

9 SEC. 401. PROTECTION FROM RETALIATION. 

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

11 as follows: 

12 ‘‘(c) PROTECTION FROM RETALIATION.— 

13 ‘‘(1) RETALIATION PROHIBITED.— 

14 ‘‘(A) RETALIATION FOR COMPLAINT OR

15 TESTIMONY.—No person shall discharge or in 

16 any manner discriminate against or cause to be 

17 discharged or cause discrimination against or 

18 otherwise interfere with the exercise of the stat19 utory rights of any miner or other employee of 

20 an operator, representative of miners, or appli21 cant for employment, because— 

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

23 representative, or applicant for employ24 ment— 


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1 ‘‘(I) has filed or made a com2 plaint, including a complaint notifying 

3 the operator or the operator’s agent, 

4 or the representative of the miners at 

5 the coal or other mine of an alleged 

6 danger or safety or health violation in 

7 a coal or other mine; 

8 ‘‘(II) instituted or caused to be 

9 instituted any proceeding under or re10 lated to this Act or has testified or is 

11 about to testify in any such pro12 ceeding, or because of the exercise by 

13 such miner or other employee, rep14 resentative, or applicant for employ15 ment on behalf of him or herself or 

16 others of any right afforded by this 

17 Act; 

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

19 testify before Congress or any Federal 

20 or State proceeding related to safety 

21 or health in a coal or other mine; or 

22 ‘‘(IV) refused to violate any pro23 vision of this Act; or 

24 ‘‘(ii) such miner is the subject of med25 ical evaluations and potential transfer 


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1 under a standard published pursuant to 

2 section 101. 

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

5 ‘‘(i) IN GENERAL.—No person shall 

6 discharge or in any manner discriminate 

7 against a miner or other employee of an 

8 operator for refusing to perform the min9 er’s or other employee’s duties if the miner 

10 or other employee has a good-faith and 

11 reasonable belief that performing such du12 ties would pose a safety or health hazard 

13 to the miner or other employee or to any 

14 other miner or employee. 

15 ‘‘(ii) STANDARD.—For purposes of 

16 clause (i), the circumstances causing the 

17 miner’s or other employee’s good-faith be18 lief that performing such duties would pose 

19 a safety or health hazard shall be of such 

20 a nature that a reasonable person, under 

21 the circumstances confronting the miner or 

22 other employee, would conclude that there 

23 is such a hazard. In order to qualify for 

24 protection under this paragraph, the miner 

25 or other employee, when practicable, shall 


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1 have communicated or attempted to com2 municate the safety or health concern to 

3 the operator and have not received from 

4 the operator a response reasonably cal5 culated to allay such concern. 

6 ‘‘(2) COMPLAINT.—Any miner or other em7 ployee, representative of miners, or applicant for em8 ployment who believes that he or she has been dis9 charged, disciplined, or otherwise discriminated 

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

11 may file a complaint with the Secretary alleging 

12 such discrimination not later than 180 days after 

13 the later of the last date on which an alleged viola14 tion of such paragraph occurs or the date on which 

15 the miner or other employee or representative knows 

16 or should reasonably have known that such alleged 

17 violation occurred. 

18 ‘‘(3) INVESTIGATION AND HEARING.— 

19 ‘‘(A) COMMENCEMENT OF INVESTIGATION

20 AND INITIAL DETERMINATION.—Upon receipt 

21 of such complaint, the Secretary shall— 

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

23 to the respondent; 


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1 ‘‘(ii) commence an investigation with2 in 15 days of the Secretary’s receipt of the 

3 complaint; and 

4 ‘‘(iii) as soon as practicable after com5 mencing such investigation, make the de6 termination required under subparagraph 

7 (B) regarding the reinstatement of the 

8 miner or other employee. 

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

10 finds that such complaint was not frivolously 

11 brought, the Commission, on an expedited basis 

12 upon application of the Secretary, shall order 

13 the immediate reinstatement of the miner or 

14 other employee until there has been a final 

15 Commission order disposing of the underlying 

16 complaint of the miner or other employee. If ei17 ther the Secretary or the miner or other em18 ployee pursues the underlying complaint, such 

19 reinstatement shall remain in effect until the 

20 Commission has disposed of such complaint on 

21 the merits, regardless of whether the Secretary 

22 pursues such complaint by filing a complaint 

23 under subparagraph (D) or the miner or other 

24 employee pursues such complaint by filing an 

25 action under paragraph (4). If neither the SecVerDate Mar 15 2010 03:05 Jul 27, 2012 Jkt 019200 PO 00000 Frm 00054 Fmt 6652 Sfmt 6201 E:\BILLS\S3443.IS S3443

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1 retary nor the miner or other employee pursues 

2 the underlying complaint within the periods 

3 specified in paragraph (4), such reinstatement 

4 shall remain in effect until such time as the 

5 Commission may, upon motion of the operator 

6 and after providing notice and an opportunity 

7 to be heard to the parties, vacate such com8 plaint for failure to prosecute. 

9 ‘‘(C) INVESTIGATION.—Such investigation 

10 shall include interviewing the complainant 

11 and— 

12 ‘‘(i) providing the respondent an op13 portunity to submit to the Secretary a 

14 written response to the complaint and to 

15 present statements from witnesses or pro16 vide evidence; and 

17 ‘‘(ii) providing the complainant an op18 portunity to receive any statements or evi19 dence provided to the Secretary and rebut 

20 any statements or evidence. 

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

22 upon such investigation, the Secretary deter23 mines that the provisions of this subsection 

24 have been violated, the Secretary shall imme25 diately file a complaint with the Commission, 


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1 with service upon the alleged violator and the 

2 miner or other employee or representative of 

3 miners alleging such discrimination or inter4 ference, and propose an order granting appro5 priate relief. 

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

7 Commission shall afford an opportunity for a 

8 hearing (in accordance with section 554 of title 

9 5, United States Code, but without regard to 

10 subsection (a)(3) of such section) and there11 after shall issue an order, based upon findings 

12 of fact, affirming, modifying, or vacating the 

13 Secretary’s proposed order, or directing other 

14 appropriate relief. Such order shall become final 

15 30 days after its issuance. The complaining 

16 miner or other employee, representative, or ap17 plicant for employment may present additional 

18 evidence on his or her own behalf during any 

19 hearing held pursuant to this paragraph. 

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

21 authority in such proceedings to require a per22 son committing a violation of this subsection to 

23 take such affirmative action to abate the viola24 tion and prescribe a remedy as the Commission 

25 considers appropriate, including— 


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1 ‘‘(i) the rehiring or reinstatement of 

2 the miner or other employee with back pay 

3 and interest and without loss of position or 

4 seniority, and restoration of the terms, 

5 rights, conditions, and privileges associated 

6 with the complainant’s employment; 

7 ‘‘(ii) any other compensatory and con8 sequential damages sufficient to make the 

9 complainant whole, and exemplary dam10 ages where appropriate; and 

11 ‘‘(iii) expungement of all warnings, 

12 reprimands, or derogatory references that 

13 have been placed in paper or electronic 

14 records or databases of any type relating 

15 to the actions by the complainant that 

16 gave rise to the unfavorable personnel ac17 tion, and, at the complainant’s direction, 

18 transmission of a copy of the decision on 

19 the complaint to any person whom the 

20 complainant reasonably believes may have 

21 received such unfavorable information. 

22 ‘‘(4) NOTICE TO AND ACTION OF COMPLAIN23 ANT.— 

24 ‘‘(A) NOTICE TO COMPLAINANT.—Not 

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1 plaint filed under paragraph (2), the Secretary 

2 shall notify, in writing, the miner or other em3 ployee, applicant for employment, or representa4 tive of miners of his determination whether a 

5 violation has occurred. 

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

7 Secretary, upon investigation, determines that 

8 the provisions of this subsection have not been 

9 violated, the complainant shall have the right, 

10 within 30 days notice of the Secretary’s deter11 mination, to file an action in his or her own be12 half before the Commission, charging discrimi13 nation or interference in violation of paragraph 

14 (1). 

15 ‘‘(C) HEARING AND DECISION.—The Com16 mission shall afford an opportunity for a hear17 ing (in accordance with section 554 of title 5, 

18 United States Code, but without regard to sub19 section (a)(3) of such section), and thereafter 

20 shall issue an order, based upon findings of 

21 fact, dismissing or sustaining the complainant’s 

22 charges and, if the charges are sustained, 

23 granting such relief as it deems appropriate as 

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

25 become final 30 days after its issuance. 


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

2 complaint pursuant to this subsection, the Commis3 sion may determine that a violation of paragraph (1) 

4 has occurred only if the complainant demonstrates 

5 that any conduct described in paragraph (1) with re6 spect to the complainant was a contributing factor 

7 in the adverse action alleged in the complaint. A de8 cision or order that is favorable to the complainant 

9 shall not be issued pursuant to this subsection if the 

10 respondent demonstrates by clear and convincing 

11 evidence that the respondent would have taken the 

12 same adverse action in the absence of such conduct. 

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

14 issued sustaining the complainant’s charges under 

15 this subsection, a sum equal to the aggregate 

16 amount of all costs and expenses, including attor17 ney’s fees, as determined by the Commission to have 

18 been reasonably incurred by the complainant for, or 

19 in connection with, the institution and prosecution of 

20 such proceedings shall be assessed against the per21 son committing such violation. The Commission 

22 shall determine whether such costs and expenses 

23 were reasonably incurred by the complainant without 

24 reference to whether the Secretary also participated 

25 in the proceeding. 


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1 ‘‘(7) EXPEDITED PROCEEDINGS; JUDICIAL RE2 VIEW.—Proceedings under this subsection shall be 

3 expedited by the Secretary and the Commission. Any 

4 order issued by the Commission under this sub5 section shall be subject to judicial review in accord6 ance with section 106. Violations by any person of 

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

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

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

10 remedies provided for in this subsection may not be 

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

12 of employment, including by any pre-dispute arbitra13 tion agreement or collective bargaining agreement. 

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

15 be construed to diminish the rights, privileges, or 

16 remedies of any employee who exercises rights under 

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

18 any collective bargaining agreement.’’. 

19 SEC. 402. PROTECTION FROM LOSS OF PAY. 

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

21 follows: 

22 ‘‘SEC. 111. ENTITLEMENT OF MINERS. 

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

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

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


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

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

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

4 to full compensation by the operator at their regular 

5 rates of pay and in accordance with their regular 

6 schedules of pay for the entire period for which they 

7 are idled. 

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

9 Secretary finds that such mine or such area of a 

10 mine was closed by the operator in anticipation of 

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

12 idled by such closure shall be entitled to full com13 pensation by the operator at their regular rates of 

14 pay and in accordance with their regular schedules 

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

16 as the Secretary authorizes reopening of such mine 

17 or such area of the mine. 

18 ‘‘(3) REFUSAL TO COMPLY.—Whenever an op19 erator violates or fails or refuses to comply with any 

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

21 110, all miners employed at the affected mine who 

22 would have been withdrawn from, or prevented from 

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

24 such order shall be entitled to full compensation by 

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1 tion to pay received for work performed after such 

2 order was issued, for the period beginning when 

3 such order was issued and ending when such order 

4 is complied with, vacated, or terminated. 

5 ‘‘(b) ENFORCEMENT.— 

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

7 shall have authority to order compensation due 

8 under this section upon the filing of a complaint by 

9 a miner or his representative and after opportunity 

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

11 States Code. Whenever the Commission issues an 

12 order sustaining the complaint under this subsection 

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

14 complainant reasonable attorneys’ fees and costs. 

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

16 Consistent with the authority of the Secretary to 

17 order miners withdrawn from a mine under this Act, 

18 the Secretary shall order a mine that has been sub19 ject to a withdrawal order under section 103, 104, 

20 107, 108, or 110, and has reopened, to be closed 

21 again if compensation in accordance with the provi22 sions of this section is not paid by the end of the 

23 next regularly scheduled payroll period following the 

24 lifting of a withdrawal order.’’. 


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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 


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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 2012, 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 


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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 sam9 ples of the amount of coal dust, including float 

10 coal dust deposited on rock-dusted surfaces, 

11 loose coal, and other combustible materials in 

12 the active workings of such mines, to ensure 

13 that the coal dust is kept below explosive levels 

14 through the appropriate application of rock 

15 dusting. 

16 ‘‘(B) DIRECT READING MONITORS.—By 

17 the later of September 30, 2012, or the date 

18 that is 30 days after the Secretary of Health 

19 and Human Services has certified in writing 

20 that direct reading monitors are commercially 

21 available to measure total incombustible content 

22 in coal dust and the Department of Labor has 

23 approved such monitors for use in underground 

24 coal mines, the Secretary shall require operaVerDate Mar 15 2010 03:05 Jul 27, 2012 Jkt 019200 PO 00000 Frm 00065 Fmt 6652 Sfmt 6201 E:\BILLS\S3443.IS S3443

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1 tors to take coal dust samples using direct 

2 reading monitors. 

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

4 not later than 180 days after the date of enact5 ment of the Robert C. Byrd Mine and Work6 place Safety and Health Act of 2012 promul7 gate an interim final rule that prescribes meth8 ods for sampling of total incombustible content 

9 of coal dust using direct reading monitors and 

10 includes requirements for locations, methods, 

11 and intervals for mandatory operator sampling. 

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

13 1 year after the date of enactment of the Rob14 ert C. Byrd Mine and Workplace Safety and 

15 Health Act of 2012, the Secretary of Health 

16 and Human Services shall, based upon the lat17 est research, recommend to the Secretary of 

18 Labor any revisions to the mandatory operator 

19 sampling locations, methods, and intervals in20 cluded in the interim final rule described in 

21 subparagraph (C) that may be warranted in 

22 light of such research.’’. 

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

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

25 Human Services, in consultation with the Secretary of 


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

2 Education and the Workforce of the House of Representa3 tives and the Committee on Health, Education, Labor, 

4 and Pensions of the Senate, a report— 

5 (1) regarding whether any direct reading device 

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

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

8 864(d)(2)(B)) is sufficiently reliable and accurate 

9 for the enforcement of the mandatory health or safe10 ty standards by the Secretary of Labor under such 

11 Act, and whether additional improvement to such di12 rect reading device, or additional verification regard13 ing reliability and accuracy, would be needed for en14 forcement purposes; and 

15 (2) identifying any limitations or impediments 

16 for such use in underground coal mines. 

17 (c) ADDITIONAL ROCK DUST REPORTING.—Section 

18 103(h) (30 U.S.C. 813(h)) is amended by inserting after 

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

20 or other mine shall, as part of the record-keeping require21 ments of this Act, maintain up-to-date records of the 

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


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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.— 

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

7 than 6 months after the date of enactment of the 

8 Robert C. Byrd Mine and Workplace Safety and 

9 Health Act of 2012, the Director of the National In10 stitute for Occupational Safety and Health, acting 

11 through the Office of Mine Safety and Health Re12 search, shall issue recommendations to the Secretary 

13 regarding— 

14 ‘‘(A) how to ensure that atmospheric moni15 toring systems are utilized in the underground 

16 coal mining industry to maximize the health 

17 and safety of underground coal miners; and 

18 ‘‘(B) the implementation of redundant sys19 tems, such as the bundle tubing system, that 

20 can continuously monitor the mine atmosphere 

21 following incidents such as fires, explosions, en22 trapments, and inundations. 

23 ‘‘(2) ATMOSPHERIC MONITORING SYSTEM REG24 ULATIONS.—Not later than 270 days following the 

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1 tions requiring that each operator of an under2 ground coal mine install atmospheric monitoring sys3 tems, consistent with such recommendations, that— 

4 ‘‘(A) protect miners where the miners nor5 mally work and travel; 

6 ‘‘(B) provide real-time information regard7 ing methane and carbon monoxide levels, and 

8 airflow direction, as appropriate, with sensing, 

9 annunciating, and recording capabilities; and 

10 ‘‘(C) can, to the maximum extent prac11 ticable, withstand explosions and fires. 

12 ‘‘(v) ADDITIONAL TECHNOLOGICAL IMPROVE13 MENTS.—Not later than 2 years after the date of enact14 ment of the Robert C. Byrd Mine and Workplace Safety 

15 and Health Act of 2012, the Secretary shall promulgate 

16 regulations requiring that mining equipment used in a coal 

17 mine incorporate an atmospheric monitoring and record18 ing device that samples and records the methane, oxygen, 

19 carbon monoxide and coal dust levels in the mine.’’. 

20 SEC. 504. TECHNOLOGY RELATED TO RESPIRABLE DUST. 

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

22 (1) by striking ‘‘of Health, Education, and Wel23 fare’’; and 

24 (2) by striking the second sentence and insert25 ing the following: ‘‘Not later than 6 months after 


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

2 and Workplace Safety and Health Act of 2012, the 

3 Secretary shall issue a final regulation lowering per4 missible exposure levels to respirable dust and up5 dating sampling and testing procedures, in order to 

6 provide the maximum feasible protection from res7 pirable dust, including coal and silica dust, that is 

8 achievable through environmental controls. Not later 

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

10 regulation, and once every 5 years thereafter, the 

11 Secretary shall reexamine the incidence of pneumo12 coniosis in miners and, unless there is a decline in 

13 pneumoconiosis, shall update the regulation.’’. 

14 SEC. 505. REFRESHER TRAINING ON MINER RIGHTS AND 

15 RESPONSIBILITIES. 

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

17 825(a)(3)) is amended to read as follows: 

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

19 hours of refresher training not less frequently than 

20 once every 12 months, and such training shall in21 clude one hour of training on the statutory rights 

22 and responsibilities of miners and their representa23 tives under this Act and other applicable Federal 

24 and State law, pursuant to a program of instruction 

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1 ployee of the Administration or by a trainer ap2 proved by the Administration that is a party inde3 pendent from the operator;’’. 

4 (b) TIMING OF INITIAL STATUTORY RIGHTS TRAIN5 ING.—Notwithstanding section 115 of the Federal Mine 

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

7 (a)) (30 U.S.C. 825) or the health and safety training pro8 gram approved under such section, an operator shall en9 sure that all miners already employed by the operator on 

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

11 hour of statutory rights and responsibilities training de12 scribed in section 115(a)(3) of such Act not later than 

13 180 days after such date. 

14 SEC. 506. ADDITIONAL TRAINING. 

15 (a) AUTHORITY TO MANDATE ADDITIONAL TRAIN16 ING.— 

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

18 is further amended by redesignating subsection (e) 

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

20 the following: 

21 ‘‘(e) AUTHORITY TO MANDATE ADDITIONAL TRAIN22 ING.— 

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

24 to issue an order requiring that an operator of a 

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1 yond what is otherwise required by law, and speci2 fying the time within which such training shall be 

3 provided, if the Secretary finds that— 

4 ‘‘(A)(i) a serious or fatal accident has oc5 curred at such mine; or 

6 ‘‘(ii) such mine has experienced accident 

7 and injury rates, citations for violations of this 

8 Act (including mandatory health or safety 

9 standards or regulations promulgated under 

10 this Act), citations for significant and substan11 tial violations, or withdrawal orders issued 

12 under this Act at a rate above the average for 

13 mines of similar size and type; and 

14 ‘‘(B) additional training would benefit the 

15 health and safety of miners at the mine. 

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

17 fails to provide training ordered under paragraph 

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

19 issue an order requiring such operator to cause all 

20 affected persons, except those persons referred to in 

21 section 104(c), to be withdrawn, and to be prohib22 ited from entering such mine, until such operator 

23 has provided such training.’’. 

24 (2) CONFORMING AMENDMENTS.—Section 

25 104(g)(2) (30 U.S.C. 814(g)(2)) is amended by 


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1 striking ‘‘under paragraph (1)’’ both places it ap2 pears and inserting ‘‘under paragraph (1) or under 

3 section 115(e)’’. 

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

5 U.S.C. 825(a)) is amended— 

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

7 inserting ‘‘; and’’; and 

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

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

10 shall receive quarterly training on the use of self-res11 cue devices, which shall be conducted in cir12 cumstances that approximate actual operating cir13 cumstances as closely as practicable, including prac14 tice during production events and during shift 

15 changes.’’. 

16 SEC. 507. CERTIFICATION OF PERSONNEL. 

17 (a) IN GENERAL.—Title I is further amended by add18 ing at the end the following: 

19 ‘‘SEC. 117. CERTIFICATION OF PERSONNEL. 

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

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

22 mine to perform any duties or provide any training that 

23 this Act, including a mandatory health or safety standard 

24 or regulation promulgated pursuant to this Act, requires 

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


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1 qualified, or otherwise approved person, shall be permitted 

2 to perform such duties or provide such training only if 

3 such person has a current certification, registration, quali4 fication, or approval to perform such duties or provide 

5 such training consistent with the requirements of this sec6 tion. 

7 ‘‘(b) ESTABLISHMENT OF CERTIFICATION REQUIRE8 MENTS AND PROCEDURES.— 

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

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

11 and Workplace Safety and Health Act of 2012, the 

12 Secretary shall issue mandatory standards to estab13 lish— 

14 ‘‘(A) requirements for such certification, 

15 registration, qualification, or other approval, in16 cluding the experience, examinations, and ref17 erences that may be required as appropriate; 

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

19 procedures for obtaining and renewing such cer20 tification, registration, qualification, or other 

21 approval; and 

22 ‘‘(C) procedures and criteria for revoking 

23 such certification, registration, qualification, or 

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1 sure that the Secretary responds to requests for 

2 revocation. 

3 ‘‘(2) COORDINATION WITH STATES.—In devel4 oping such standards, the Secretary shall consult 

5 with States that have miner certification programs 

6 to ensure effective coordination with existing State 

7 standards and requirements for certification. The 

8 standards required under paragraph (1) may provide 

9 that the certification, registration, qualification, or 

10 other approval of the State in which the coal or 

11 other mine is located satisfies the requirement of 

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

13 registration, qualification, or other approval is no 

14 less stringent than the standards established by the 

15 Secretary under paragraph (1). 

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

17 ‘‘(1) ASSESSMENT AND COLLECTION.—Begin18 ning 180 days after the date of enactment of the 

19 Robert C. Byrd Mine and Workplace Safety and 

20 Health Act of 2012, the Secretary shall assess and 

21 collect fees, in accordance with this subsection, from 

22 each operator for each person certified under this 

23 section. Fees shall be assessed and collected in 

24 amounts determined by the Secretary as necessary 


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1 to fund the certification programs established under 

2 this section. 

3 ‘‘(2) MINE SAFETY AND HEALTH CERTIFI4 CATION FUND.—There is established in the Treasury 

5 of the United States a separate account for the de6 posit of fees collected under this subsection to be 

7 known as the Mine Safety and Health Certification 

8 Fund. The Secretary shall deposit any fees collected 

9 pursuant to paragraph (1) into the fund. 

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

11 Health Certification Fund shall be available to the 

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

13 expenditures to carry out the certification programs 

14 established under this subsection. 

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

16 addition to funds appropriated under section 114, 

17 there is authorized to be appropriated from the Mine 

18 Safety and Health Certification Fund to the Assist19 ant Secretary for Mine Safety and Health for each 

20 fiscal year in which fees are collected under para21 graph (1) an amount equal to the total amount col22 lected during the previous fiscal year from fees as23 sessed pursuant to this subsection. Such amounts 

24 are authorized to remain available until expended. 


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

2 Fees authorized and collected under this subsection 

3 shall be available for obligation only to the extent 

4 and in the amount provided in advance in appropria5 tions Acts. 

6 ‘‘(d) CITATION; WITHDRAWAL ORDER.—Any oper7 ator who permits a person to perform any of the health 

8 or safety related functions described in subsection (a) 

9 without a current certification which meets the require10 ments of this section shall be considered to have com11 mitted an unwarrantable failure under section 104(d)(1), 

12 and the Secretary shall issue an order requiring that the 

13 miner be withdrawn or reassigned to duties that do not 

14 require such certification.’’. 

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

16 U.S.C. 878) is amended— 

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

18 (2) in subsection (c), by redesignating para19 graphs (1) through (3) as subparagraphs (A) 

20 through (C), respectively; 

21 (3) in subsection (g), by redesignating para22 graphs (1) through (4) as subparagraphs (A) 

23 through (D), respectively; and 

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

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


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1 TITLE VI—ADDITIONAL MINE 

2 SAFETY PROVISIONS 

3 SEC. 601. DEFINITIONS. 

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

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

6 ‘‘(d) ‘operator’ means— 

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

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

9 mine; or 

10 ‘‘(B) controls such mine by making or hav11 ing the authority to make management or oper12 ational decisions that affect, directly or indi13 rectly, the health or safety at such mine; or 

14 ‘‘(2) any independent contractor performing 

15 services or construction at such mine;’’. 

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

17 802(e)) is amended by striking ‘‘the miners’’ and inserting 

18 ‘‘any miner’’. 

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

20 802(g)) is amended by inserting after ‘‘or other mine’’ the 

21 following: ‘‘, and includes any individual who is not cur22 rently working in a coal or other mine but would be cur23 rently working in such mine, but for an accident in such 

24 mine’’. 


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1 (d) DEFINITION OF IMMINENT DANGER.—Section 

2 3(j) (30 U.S.C. 802(j)) is amended— 

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

4 following: ‘‘means— 

5 ‘‘(1) the’’; 

6 (2) by striking the semicolon at the end and in7 serting ‘‘; or’’; and 

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

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

10 practices (regardless of whether related to each 

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

12 reasonably be expected to cause death or serious 

13 physical harm before such conditions or practices 

14 can be abated;’’. 

15 (e) DEFINITION OF SIGNIFICANT AND SUBSTANTIAL

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

17 amended— 

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

19 the semicolon; 

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

21 the end and inserting a semicolon; 

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

23 the end and inserting ‘‘; and’’; and 

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


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

2 violation of this Act, including any mandatory health or 

3 safety standard or regulation promulgated under this Act, 

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

6 mine safety or health hazard as described in section 

7 104(d).’’. 

8 SEC. 602. ASSISTANCE TO STATES. 

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

10 (1) in subsection (a)— 

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

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

14 the Secretary of the Interior,’’; 

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

16 after the semicolon; 

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

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

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

22 other mines required for compliance with section 

23 117.’’; and 

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

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

2 each fiscal year’’. 

3 SEC. 603. BLACK LUNG MEDICAL REPORTS. 

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

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

7 ‘‘SEC. 435. MEDICAL REPORTS. 

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

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

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

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

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

17 imaging techniques and tests that were performed on the 

18 miner.’’. 

19 SEC. 604. STUDY ON WORKFORCE NEEDS. 

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

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

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

24 enforcement agencies, including the need for engineers 

25 and mine safety and health professionals. 


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

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

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

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

7 engineers and safety and health professionals with8 in— 

9 (A) the mining industry; 

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

12 (C) State enforcement agencies responsible 

13 for mine safety and health. 

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

15 States shall prepare and submit to the Committee on 

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

17 to the Committee on Education and the Workforce of the 

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

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

23 (c). 


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1 SEC. 605. MINE SAFETY AND HEALTH ADMINISTRATION 

2 STRATEGIC PLANNING. 

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

4 2012, the Secretary of Labor, acting through the Assist5 ant Secretary of Labor for Mine Safety and Health, shall 

6 submit to the Director of the Office of Management and 

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

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

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

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

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

13 provided in this section; 

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

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

17 (b) ANNUAL PERFORMANCE PLAN.—Beginning with 

18 the Mine Safety and Health Administration budget sub19 mission for fiscal year 2014, the Secretary of Labor, act20 ing through the Assistant Secretary of Labor for Mine 

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

23 plan covering each program activity set forth in the budget 

24 of the Mine Safety and Health Administration. Such plan 

25 shall— 


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

3 title 31, United States Code, except as otherwise 

4 provided in this section; 

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

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

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

10 goals and objectives of the Mine Safety and Health 

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

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

14 of a fiscal year, beginning with fiscal year 2014, the Sec15 retary of Labor, acting through the Assistant Secretary 

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

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

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

20 fiscal year. Such report shall— 

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


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

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

4 TITLE VII—AMENDMENTS TO 

5 THE OCCUPATIONAL SAFETY 

6 AND HEALTH ACT OF 1970 

7 SEC. 701. ENHANCED PROTECTIONS FROM RETALIATION. 

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

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

10 660(c)(1)) is amended— 

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

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

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

15 against, any employee because— 

16 ‘‘(A) such’’; 

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

18 the following: ‘‘this Act; 

19 ‘‘(B) such employee has’’; 

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

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

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

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

25 provision of this Act; or 


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1 ‘‘(D) of the exercise’’; and 

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

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

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

5 the employer, safety and health committee involved, 

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

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

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

10 paragraph (2) and inserting the following: 

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

13 to be discriminated against, an employee for refusing to 

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

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

17 health of, the employee or other employees. 

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

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

22 under the circumstances confronting the employee, would 

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

24 for protection under this paragraph, the employee, when 

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1 municate the safety or health concern to the employer and 

2 have not received from the employer a response reasonably 

3 calculated to allay such concern.’’. 

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

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

6 inserting the following: 

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

8 that the employee has been discharged, disciplined, 

9 or otherwise discriminated against by any person in 

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

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

13 ‘‘(4) STATUTE OF LIMITATIONS.— 

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

15 the action permitted by paragraph (3) not later 

16 than 180 days after the later of— 

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

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

20 knows or should reasonably have known 

21 that such alleged violation occurred. 

22 ‘‘(B) REPEAT VIOLATION.—Except in 

23 cases when the employee has been discharged, 

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

3 ‘‘(5) INVESTIGATION.— 

4 ‘‘(A) IN GENERAL.—An employee may, 

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

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

8 the complaint alleges a prima facie case, the 

9 Secretary shall conduct an investigation of the 

10 allegations in the complaint, which— 

11 ‘‘(i) shall include— 

12 ‘‘(I) interviewing the complain13 ant; 

14 ‘‘(II) providing the respondent an 

15 opportunity to— 

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

18 complaint; and 

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

21 witnesses or provide evidence; 

22 and 

23 ‘‘(III) providing the complainant 

24 an opportunity to— 


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1 ‘‘(aa) receive any statements 

2 or evidence provided to the Sec3 retary; 

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

6 ‘‘(cc) rebut any statements 

7 or evidence; and 

8 ‘‘(ii) may include issuing subpoenas 

9 for the purposes of such investigation. 

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

11 after the filing of the complaint, the Secretary 

12 shall— 

13 ‘‘(i) determine whether reasonable 

14 cause exists to believe that a violation of 

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

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

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

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

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

23 preliminary order providing relief authorized under 

24 paragraph (14) at the same time the Secretary 

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


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1 novo hearing is not requested within the time period 

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

5 ‘‘(7) HEARING.— 

6 ‘‘(A) REQUEST FOR HEARING.— 

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

8 on the record before an administrative law 

9 judge may be requested— 

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

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

16 ‘‘(II) by the complainant within 

17 30 days after the date the complaint 

18 is dismissed without investigation by 

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

20 or 

21 ‘‘(III) by the complainant within 

22 120 days after the date of filing the 

23 complaint, if the Secretary has not 

24 issued a decision under paragraph 

25 (5)(B). 


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1 ‘‘(ii) REINSTATEMENT ORDER.—The 

2 request for a hearing shall not operate to 

3 stay any preliminary reinstatement order 

4 issued under paragraph (6). 

5 ‘‘(B) PROCEDURES.— 

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

9 with rules established by the Secretary for 

10 hearings conducted by administrative law 

11 judges. 

12 ‘‘(ii) SUBPOENAS; PRODUCTION OF

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

15 subpoenas. The respondent or complainant 

16 may request the issuance of subpoenas 

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

19 the production of any evidence (including 

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

23 ‘‘(iii) DECISION.—The administrative 

24 law judge shall issue a decision not later 

25 than 90 days after the date on which a 


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

3 parties and the Secretary of such decision, 

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

6 judge finds that a violation of paragraph 

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

8 issue an order for relief under paragraph 

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

10 timely requested, such order shall be 

11 deemed a final order of the Secretary that 

12 is not subject to judicial review. 

13 ‘‘(8) ADMINISTRATIVE APPEAL.— 

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

15 days after the date of notification of a decision 

16 and order issued by an administrative law judge 

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

20 body designated by the Secretary (referred to in 

21 this paragraph as the ‘review board’). 

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

24 law judge, the review board shall affirm the de25 cision and order if it is determined that the facVerDate Mar 15 2010 03:05 Jul 27, 2012 Jkt 019200 PO 00000 Frm 00092 Fmt 6652 Sfmt 6201 E:\BILLS\S3443.IS S3443

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1 tual findings set forth therein are supported by 

2 substantial evidence and the decision and order 

3 are made in accordance with applicable law. 

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

5 grants an administrative appeal, the review 

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

8 decision under review by not later than 90 days 

9 after receipt of the administrative appeal. If it 

10 is determined that a violation of paragraph (1) 

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

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

14 and order shall constitute final agency action 

15 with respect to the matter appealed. 

16 ‘‘(9) SETTLEMENT IN THE ADMINISTRATIVE

17 PROCESS.— 

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

19 issuance of a final order, an investigation or 

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

22 entered into by the parties. 

23 ‘‘(B) PUBLIC POLICY CONSIDERATIONS.— 

24 Neither the Secretary, an administrative law 

25 judge, or review board conducting a hearing 


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1 under this subsection shall accept a settlement 

2 that contains conditions conflicting with the 

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

5 a complainant’s right to future employment 

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

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

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

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

13 ‘‘(i) an administrative law judge has 

14 not issued a decision and order within the 

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

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

18 a decision and order within the 90-day 

19 time period required under paragraph 

20 (8)(C). 

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

23 United States district court for the district 

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


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1 on the date of such alleged violation. The court 

2 shall have jurisdiction over such action without 

3 regard to the amount in controversy and to 

4 order appropriate relief under paragraph (14). 

5 Such action shall, at the request of either party 

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

7 jury. 

8 ‘‘(11) JUDICIAL REVIEW.— 

9 ‘‘(A) TIMELY APPEAL TO THE COURT OF

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

12 under this subsection may obtain review of such 

13 decision and order in the United States Court 

14 of Appeals for the circuit where the violation, 

15 with respect to which such final decision and 

16 order was issued, allegedly occurred or where 

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

19 shall file a petition for review not later than 60 

20 days after the final decision and order was 

21 issued. Such review shall conform to chapter 7 

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

24 shall not, unless ordered by the court, operate 

25 as a stay of the final decision and order. 


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

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

5 in any criminal or other civil proceeding. 

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

8 this subsection, the Secretary or the complainant on 

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

11 court for the district in which the violation was 

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

13 Secretary and the complainant file such action, the 

14 action of the Secretary shall take precedence. The 

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

17 ‘‘(13) BURDENS OF PROOF.— 

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

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

22 or a court may determine that a violation of 

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

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


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1 the complainant was a contributing factor in 

2 the adverse action alleged in the complaint. 

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

6 any administrative or judicial action pursuant 

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

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

11 ‘‘(14) RELIEF.— 

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

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

16 court, respectively, shall have jurisdiction to 

17 order all appropriate relief, including injunctive 

18 relief, compensatory and exemplary damages, 

19 including— 

20 ‘‘(i) affirmative action to abate the 

21 violation; 

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

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

5 ‘‘(iii) compensatory and consequential 

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

9 ‘‘(iv) expungement of all warnings, 

10 reprimands, or derogatory references that 

11 have been placed in paper or electronic 

12 records or databases of any type relating 

13 to the actions by the complainant that 

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

16 transmission of a copy of the decision on 

17 the complaint to any person whom the 

18 complainant reasonably believes may have 

19 received such unfavorable information. 

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

21 the Secretary or an administrative law judge, 

22 review board, or court grants an order for relief 

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1 spectively, shall assess, at the request of the 

2 employee against the employer— 

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

4 ‘‘(ii) costs (including expert witness 

5 fees)) reasonably incurred, as determined 

6 by the Secretary, administrative law judge, 

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

9 which the order was issued. 

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

11 remedies provided for in this subsection may not be 

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

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

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

16 shall be construed to diminish the rights, privileges, 

17 or remedies of any employee who exercises rights 

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

19 under any collective bargaining agreement. 

20 ‘‘(17) ELECTION OF VENUE.— 

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

22 employer who is located in a State that has a 

23 State plan approved under section 18 may file 

24 a complaint alleging a violation of paragraph 

25 (1) or (2) by such employer with— 


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1 ‘‘(i) the Secretary under paragraph 

2 (5); or 

3 ‘‘(ii) a State plan administrator in 

4 such State. 

5 ‘‘(B) REFERRALS.—If— 

6 ‘‘(i) the Secretary receives a complaint 

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

9 State plan administrator for resolution; or 

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

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

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

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

18 violations under section 11(c)’’. 

19 SEC. 702. VICTIMS’ RIGHTS. 

20 The Occupational Safety and Health Act of 1970 (29 

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

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

23 ‘‘SEC. 9A. VICTIMS’ RIGHTS. 

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

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


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1 with respect to an inspection or investigation conducted 

2 under section 8 to— 

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

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

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

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

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

15 time or any proceedings, service of pleadings, and 

16 other relevant documents, and an explanation of the 

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

19 conducted under section 10(c). 

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

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

25 proceeding before the Commission; 


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

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

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

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

7 into an agreement to withdraw or modify a citation issued 

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

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

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

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

17 establish procedures— 

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

19 section; and 

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

21 denial of such a right. 

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


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

2 of victims to be heard in proceedings before the 

3 Commission; and 

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

6 by any victim before the Commission. 

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

10 family liaison to— 

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

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

15 under this section. 

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

17 means— 

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

19 who has sustained a work-related injury or illness 

20 that is the subject of an inspection or investigation 

21 conducted under section 8; or 

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

23 the Secretary) of a victim described in paragraph 

24 (1), if— 


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

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

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

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

11 PROCEDURES FOR A STAY. 

12 Section 10 of the Occupational Safety and Health Act 

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

14 the following: 

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

18 ‘‘(1) PERIOD PERMITTED FOR CORRECTION OF

19 SERIOUS, WILLFUL, OR REPEATED VIOLATIONS.— 

20 For each violation which the Secretary designates as 

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

22 the correction of the violation shall begin to run 

23 upon receipt of the citation. 

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

25 filing of a notice of contest by an employer— 


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

3 serious, willful, or repeated; and 

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

5 for correction of a violation not designated by 

6 the Secretary as serious, willful, or repeated. 

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

8 STAYS.— 

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

10 may file with the Commission a motion to stay 

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

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

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

15 filed under subparagraph (A), the Commission 

16 shall consider whether— 

17 ‘‘(i) the employer has demonstrated a 

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

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

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

23 health and safety of workers. 

24 ‘‘(C) RULES OF PROCEDURE.—The Com25 mission shall develop rules of procedure for conVerDate Mar 15 2010 03:05 Jul 27, 2012 Jkt 019200 PO 00000 Frm 00105 Fmt 6652 Sfmt 6201 E:\BILLS\S3443.IS S3443

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

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

6 than 15 days following the filing of the 

7 motion for a stay (unless extended at the 

8 request of the employer), and shall provide 

9 for a decision on the motion not later than 

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

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

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

16 a decision issued by an administrative law 

17 judge regarding the stay, such party has 

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

20 of the administrative law judge’s decision. 

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

24 whether to grant review of the objection. 

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1 jection, no decision is made on whether to 

2 review the decision of the administrative 

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

5 the decision of the administrative law 

6 judge shall become a final order of the 

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

9 issue a decision regarding the stay not 

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

12 such decision within 30 days, the decision 

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

15 ‘‘(iv) For notification to employees or 

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

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

21 SEC. 704. CONFORMING AMENDMENTS. 

22 Section 17(d) of the Occupational Safety and Health 

23 Act of 1970 (29 U.S.C. 666(d)) is amended to read as 

24 follows: 


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

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

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

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

5 has not been issued by the Commission under section 

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

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

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

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

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

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

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

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

18 SEC. 705. CIVIL PENALTIES. 

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

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

22 (1) in subsection (a)— 

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

24 ‘‘$120,000’’; 


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

2 ‘‘$8,000’’; and 

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

4 determining whether a violation is repeated, the 

5 Secretary shall consider the employer’s history 

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

8 under section 18. If such a willful or repeated 

9 violation caused or contributed to the death of 

10 an employee, such civil penalty amounts shall 

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

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

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

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

16 violation.’’; 

17 (2) in subsection (b)— 

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

19 ‘‘$12,000’’; and 

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

21 such a violation caused or contributed to the 

22 death of an employee, such civil penalty 

23 amounts shall be increased to not more than 

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

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


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

3 for each such violation.’’; 

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

5 inserting ‘‘$12,000’’; 

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

7 704, by striking ‘‘$7,000’’ each place it occurs and 

8 inserting ‘‘$12,000’’; 

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

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

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

13 ‘‘$12,000;’’. 

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

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

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

17 penalties shall be adjusted by the Secretary at least once 

18 during each 4-year period beginning January 1, 2016, to 

19 account for the percentage increase or decrease in the 

20 Consumer Price Index for all urban consumers during 

21 such period.’’. 

22 SEC. 706. CRIMINAL PENALTIES. 

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

24 amended by sections 704 and 705) is further amended— 


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

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

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

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

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

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

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

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

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

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

14 20 years, or by both. 

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

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

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

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

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

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

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

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

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

2 imprisonment for not more than 5 years,’’; 

3 (4) by redesignating subsections (j) through 

4 (m) as subsections (k) through (n), respectively; and 

5 (5) by inserting after subsection (i) the fol6 lowing: 

7 ‘‘(j)(1) Any employer who knowingly violates any 

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

9 any regulation prescribed under this Act, and that viola10 tion causes or contributes to serious bodily harm to any 

11 employee but does not cause death to any employee, shall, 

12 upon conviction, be punished by a fine in accordance with 

13 title 18, United States Code, or by imprisonment for not 

14 more than 5 years, or by both, except that if the conviction 

15 is for a violation committed after a first conviction of such 

16 person under this subsection or subsection (e), punishment 

17 shall be by a fine in accordance with title 18, United 

18 States Code, or by imprisonment for not more than 10 

19 years, or by both. 

20 ‘‘(2) For the purpose of this subsection, the term ‘em21 ployer’ means, in addition to the definition contained in 

22 section 3, any officer or director. 

23 ‘‘(3) For purposes of this subsection, the term ‘seri24 ous bodily harm’ means bodily injury or illness that in25 volves— 


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1 ‘‘(A) a substantial risk of death; 

2 ‘‘(B) protracted unconsciousness; 

3 ‘‘(C) protracted and obvious physical disfigure4 ment; or 

5 ‘‘(D) protracted loss or impairment, either tem6 porary or permanent, of the function of a bodily 

7 member, organ, or mental faculty.’’. 

8 (b) JURISDICTION FOR PROSECUTION UNDER STATE

9 AND LOCAL CRIMINAL LAWS.—Section 17 (29 U.S.C. 

10 666) (as amended by this Act) is further amended by add11 ing at the end the following: 

12 ‘‘(o) Nothing in this Act shall preclude a State or 

13 local law enforcement agency from conducting criminal 

14 prosecutions in accordance with the laws of such State or 

15 locality.’’. 

16 SEC. 707. PENALTIES. 

17 Section 17(n) (as redesignated by section 706(a)(4)) 

18 (29 U.S.C. 666(n)) is amended by adding at the end the 

19 following: ‘‘Pre-final order interest on such penalties shall 

20 begin to accrue on the date the party contests a citation 

21 issued under this Act, and shall end upon the issuance 

22 of the final order. Such pre-final order interest shall be 

23 calculated at the current underpayment rate determined 

24 by the Secretary of the Treasury pursuant to section 6621 

25 of the Internal Revenue Code of 1986, and shall be comVerDate Mar 15 2010 03:05 Jul 27, 2012 Jkt 019200 PO 00000 Frm 00113 Fmt 6652 Sfmt 6201 E:\BILLS\S3443.IS S3443

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1 pounded daily. Post-final order interest shall begin to ac2 crue 30 days after the date a final order of the Commis3 sion or the court is issued, and shall be charged at the 

4 rate of 8 percent per year.’’. 

5 SEC. 708. EFFECTIVE DATE. 

6 (a) GENERAL RULE.—Except as provided for in sub7 section (b), this title and the amendments made by this 

8 title shall take effect not later than 90 days after the date 

9 of the enactment of this Act. 

10 (b) EXCEPTION FOR STATES AND POLITICAL SUB11 DIVISIONS.—A State that has a State plan approved under 

12 section 18 (29 U.S.C. 667) shall amend its State plan to 

13 conform with the requirements of this Act and the amend14 ments made by this Act not later than 12 months after 

15 the date of the enactment of this Act. The Secretary of 

16 Labor may extend the period for a State to make such 

17 amendments to its State plan by not more than 12 

18 months, if the State’s legislature is not in session during 

19 the 12-month period beginning with the date of the enact20 ment of this Act. Such amendments to the State plan shall 

21 take effect not later than 90 days after the adoption of 

22 such amendments by such State. 

Æ 


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