IB 

Union Calendar No. 334 

111TH CONGRESS 

2D SESSION H. R. 5663 

[Report No. 111–579, Part I] 

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

empower workers to raise safety concerns, prevent future mine and 

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

IN THE HOUSE OF REPRESENTATIVES 

JULY 1, 2010 

Mr. GEORGE MILLER of California (for himself, Ms. WOOLSEY, Mr. RAHALL, 

Mr. COURTNEY, Mr. MOLLOHAN, Ms. HIRONO, Mr. SESTAK, Mr. ANDREWS, Mr. HARE, Ms. SHEA-PORTER, Mr. GRIJALVA, Mr. BISHOP of 

New York, Ms. SUTTON, Ms. CLARKE, Mr. SHULER, Mr. PIERLUISI, Mr. 

KILDEE, and Mr. HOLT) introduced the following bill; which was referred 

to the Committee on Education and Labor 

JULY 29, 2010 

Additional sponsors: Mr. KUCINICH, Ms. CHU, Mr. COSTELLO, Mr. BACA, Mr. 

SCHIFF, Ms. SLAUGHTER, Mr. MICHAUD, Mr. TIERNEY, Mr. ARCURI, 

Mr. TOWNS, Ms. VELA ́ZQUEZ, Mr. BRADY of Pennsylvania, Mr. POLIS of 

Colorado, Ms. ZOE LOFGREN of California, Mr. HINCHEY, Ms. PINGREE

of Maine, Mr. SPACE, Mr. FILNER, Mr. TONKO, Mr. STARK, Ms. LINDA

T. SA ́NCHEZ of California, Mr. KAGEN, Ms. LORETTA SANCHEZ of California, Mr. NADLER of New York, Mr. BLUMENAUER, Mr. HONDA, Mr. 

CHANDLER, Mrs. MALONEY, Mr. GENE GREEN of Texas, Ms. BERKLEY, 

Mr. LARSEN of Washington, Ms. MCCOLLUM, Mr. JACKSON of Illinois, 

Ms. HARMAN, Mr. SHERMAN, Mr. VISCLOSKY, Mr. LANGEVIN, and Mr. 

PATRICK J. MURPHY of Pennsylvania 


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JULY 29, 2010 

Reported with an amendment, referred to the Committee on the Judiciary for 

a period ending not later than July 29, 2010, for consideration of such 

provisions of the bill and amendment as fall within the jurisdiction of 

that committee pursuant to clause 1(k), rule X 

[Strike out all after the enacting clause and insert the part printed in italic] 

JULY 29, 2010 

Committee on the Judiciary discharged; committed to the Committee of the 

Whole House on the State of the Union and ordered to be printed 

[For text of introduced bill, see copy of bill as introduced on July 1, 2010] 

A BILL 

To improve compliance with mine and occupational safety 

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

accidents, and for other purposes. 


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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 Miner Safety and Health Act of 2010’’. 

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

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. References. 

TITLE I—ADDITIONAL INSPECTION AND INVESTIGATION 

AUTHORITY 

Sec. 101. Independent accident investigations. 

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

Sec. 103. Designation of miner representative. 

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

TITLE II—ENHANCED ENFORCEMENT AUTHORITY 

Sec. 201. Technical amendment. 

Sec. 202. 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. 

Sec. 206. GAO Study on MSHA Mine Plan Approval. 

TITLE III—PENALTIES 

Sec. 301. Civil penalties. 

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

Sec. 303. Criminal penalties. 

Sec. 304. Commission review of penalty assessments. 

Sec. 305. Delinquent payments and prejudgment interest. 

TITLE IV—WORKER RIGHTS AND PROTECTIONS 

Sec. 401. Protection from retaliation. 

Sec. 402. Protection from loss of pay. 

Sec. 403. Underground coal miner employment standard for mines placed in pattern status. 

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. 


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Sec. 504. Technology related to respirable dust. 

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

Sec. 506. Authority to mandate additional training. 

Sec. 507. Certification of personnel. 

TITLE VI—ADDITIONAL MINE SAFETY PROVISIONS 

Sec. 601. Definitions. 

Sec. 602. Assistance to States. 

Sec. 603. Black lung medical reports. 

Sec. 604. Rules of application to certain mines. 

TITLE VII—AMENDMENTS TO THE OCCUPATIONAL SAFETY AND 

HEALTH ACT 

Sec. 701. Enhanced protections from retaliation. 

Sec. 702. Victims’ rights. 

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

procedures for a stay. 

Sec. 704. Conforming amendments. 

Sec. 705. Civil penalties. 

Sec. 706. Criminal penalties. 

Sec. 707. Pre-final order interest. 

Sec. 708. Review of State Occupational Safety and Health Plans. 

Sec. 709. Health Hazard Evaluations by the National Institute for Occupational 

Safety and Health. 

Sec. 710. Authorization of cooperative agreements by NIOSH Office of Mine Safety and Health. 

Sec. 711. Effective date. 

1 SEC. 2. REFERENCES. 

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

4 an amendment to a section or other provision, the reference 

5 shall be considered to be made to a section or other provi6 sion of the Federal Mine Safety and Health Act of 1977 

7 (30 U.S.C. 801 et seq.). 


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1 TITLE I—ADDITIONAL INSPEC2 TION AND INVESTIGATION 

3 AUTHORITY 

4 SEC. 101. INDEPENDENT ACCIDENT INVESTIGATIONS. 

5 (a) IN GENERAL.—Section 103(b) (30 U.S.C. 813(b)) 

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

7 the following: 

8 ‘‘(b) ACCIDENT INVESTIGATIONS.— 

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

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

12 ‘‘(B) determine whether there were viola13 tions of law, mandatory health and safety stand14 ards, or other requirements, and if such viola15 tions are found, issue citations and penalties, 

16 and in cases involving possible criminal actions, 

17 the Secretary may refer such matters to the At18 torney General; and 

19 ‘‘(C) make recommendations to avoid any 

20 recurrence. 

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

23 ‘‘(A) IN GENERAL.—There shall be, in addi24 tion to an accident investigation under para25 graph (1), an independent investigation by an 


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1 independent investigation panel (referred to in 

2 this subsection as the ‘Panel’) appointed under 

3 subparagraph (B) for— 

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

5 deaths; or 

6 ‘‘(ii) any accident that is of such sever7 ity or scale for potential or actual harm 

8 that, in the opinion of the Secretary of 

9 Health and Human Services, the accident 

10 merits an independent investigation. 

11 ‘‘(B) APPOINTMENT.— 

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

15 Human Services shall appoint 5 members 

16 for the Panel required under this paragraph 

17 from among individuals who have expertise 

18 in accident investigations, mine engineer19 ing, or mine safety and health that is rel20 evant to the particular investigation. 

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

22 include, and be chaired by, a representative 

23 from the Office of Mine Safety and Health 

24 Research, of the National Institute for OccuVerDate Mar 15 2010 21:34 Jul 29, 2010 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6203 E:\BILLS\H5663.RH H5663

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1 pational Safety and Health (referred to in 

2 this subsection as NIOSH). 

3 ‘‘(iii) CONFLICTS OF INTEREST.— 

4 Panel members, and staff and consultants 

5 assisting the Panel with an investigation, 

6 shall be free from conflicts of interest with 

7 regard to the investigation, and be subject to 

8 the same standards of ethical conduct for 

9 persons employed by the Secretary. 

10 ‘‘(iv) COMPOSITION.—The Secretary of 

11 Health and Human Services shall appoint 

12 as members of the Panel— 

13 ‘‘(I) 1 operator of a mine or indi14 vidual representing mine operators, 

15 and 

16 ‘‘(II) 1 representative of a labor 

17 organization that represents miners, 

18 and may not appoint more than 1 of either 

19 such individuals as members of the Panel. 

20 ‘‘(v) STAFF AND EXPENSES.—The Di21 rector of NIOSH shall designate NIOSH 

22 staff to facilitate the work of the Panel. The 

23 Director may accept as staff personnel on 

24 detail from other Federal agencies or re-em25 ploy annuitants. The detail of personnel 


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1 under this paragraph may be on a non-re2 imbursable basis, and such detail shall be 

3 without interruption or loss of civil service 

4 status or privilege. The Director of NIOSH 

5 shall have the authority to procure on behalf 

6 of the Panel such materials, supplies or 

7 services, including technical experts, as re8 quested in writing by a majority of the 

9 Panel. 

10 ‘‘(vi) COMPENSATION AND TRAVEL.— 

11 All members of the Panel who are officers or 

12 employees of the United States shall serve 

13 without compensation in addition to that 

14 received for their services as officers or em15 ployees of the United States. Each Panel 

16 member who is not an officer or employee of 

17 the United States shall be compensated at a 

18 rate equal to the daily equivalent of the an19 nual rate of basic pay prescribed for level 

20 IV of the Executive Schedule under section 

21 5315 of title 5, United States Code, for each 

22 day (including travel time) during which 

23 such member is engaged in the performance 

24 of duties of the Panel. The members of the 

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1 cluding per diem in lieu of subsistence, at 

2 rates authorized for employees of agencies 

3 under subchapter 1 of chapter 57 of title 5, 

4 United States Code, while away from their 

5 homes or regular places of business in the 

6 performance of services for the Panel. 

7 ‘‘(C) DUTIES.—The Panel shall— 

8 ‘‘(i) assess and identify any factors 

9 that caused the accident, including defi10 ciencies in safety management systems, reg11 ulations, enforcement, industry practices or 

12 guidelines, or organizational failures; 

13 ‘‘(ii) identify and evaluate any con14 tributing actions or inactions of— 

15 ‘‘(I) the operator; 

16 ‘‘(II) any contractors or other per17 sons engaged in mining-related func18 tions at the site; 

19 ‘‘(III) any State agency with 

20 oversight responsibilities; 

21 ‘‘(IV) any agency or office within 

22 the Department of Labor; or 

23 ‘‘(V) any other person or entity 

24 (including equipment manufacturers); 


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1 ‘‘(iii) review the determinations and 

2 recommendations by the Secretary under 

3 paragraph (1); 

4 ‘‘(iv) prepare a report that— 

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

7 clauses (i) and (ii); 

8 ‘‘(II) identifies any strengths and 

9 weaknesses in the Secretary’s investiga10 tion; and 

11 ‘‘(III) includes recommendations, 

12 including interim recommendations 

13 where appropriate, to industry, labor 

14 organizations, State and Federal agen15 cies, or Congress, regarding policy, reg16 ulatory, enforcement, administrative, 

17 or other changes, which in the judg18 ment of the Panel, would prevent a re19 currence at other mines; and 

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

22 which the Attorney General requests that the 

23 Secretary withhold in relation to a criminal 

24 referral) and hold public meetings to inform 

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1 fected miners of the Panel’s findings and 

2 recommendations. 

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

5 authority to conduct public hearings or meetings, 

6 but shall not be subject to the Federal Advisory 

7 Committee Act. All public hearings of the Panel 

8 shall be subject to the requirements under section 

9 552b of title 5, United States Code. 

10 ‘‘(E) MEMORANDUM OF UNDERSTANDING.— 

11 Not later than 90 days after the date of enact12 ment of the Robert C. Byrd Miner Safety and 

13 Health Act of 2010, the Secretary of Labor and 

14 the Secretary of Health and Human Services 

15 shall conclude and publically issue a memo16 randum of understanding that— 

17 ‘‘(i) outlines administrative arrange18 ments which will facilitate a coordination 

19 of efforts between the Secretary of Labor 

20 and the Panel, ensures that the Secretary’s 

21 investigation under paragraph (1) is not 

22 delayed or otherwise compromised by the 

23 activities of the Panel, and establishes a 

24 process to resolve any conflicts between such 

25 investigations; 


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1 ‘‘(ii) ensures that Panel members or 

2 staff will be able to participate in investiga3 tion activities (such as mine inspections 

4 and interviews) related to the Secretary of 

5 Labor’s investigation and will have full ac6 cess to documents that are assembled or pro7 duced in such investigation, and ensures 

8 that the Secretary of Labor will make all of 

9 the authority available to such Secretary 

10 under this section, including subpoena au11 thority, to obtain information and witnesses 

12 which may be requested by such Panel; and 

13 ‘‘(iii) establishes such other arrange14 ments as are necessary to implement this 

15 paragraph. 

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

17 days after the date of enactment of the Robert C. 

18 Byrd Miner Safety and Health Act of 2010, the 

19 Secretary of Health and Human Services shall 

20 establish procedures to ensure the consistency 

21 and effectiveness of Panel investigations. In es22 tablishing such procedures, such Secretary shall 

23 consult with independent safety investigation 

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1 volved in fatal accidents, State mine safety agen2 cies, and mine rescue organizations. Such proce3 dures shall include— 

4 ‘‘(i) authority for the Panel to use evi5 dence, samples, interviews, data, analyses, 

6 findings, or other information gathered by 

7 the Secretary of Labor, as the Panel deter8 mines valid; 

9 ‘‘(ii) provisions to ensure confiden10 tiality if requested by any witness, to the 

11 extent permitted by law, and prevent con12 flicts of interest in witness representation; 

13 and 

14 ‘‘(iii) provisions for preservation of 

15 public access to the Panel’s records through 

16 the Secretary of Health and Human Serv17 ices. 

18 ‘‘(G) AUTHORIZATION OF APPROPRIA19 TIONS.—There is authorized to be appropriated 

20 to carry out this subsection such sums as may be 

21 necessary. 

22 ‘‘(3) POWERS AND PROCESSES.—For the pur23 pose’’. 

24 (b) REPORTING REQUIREMENTS.—Section 511(a) (30 

25 U.S.C. 958(a)) is amended by inserting after ‘‘501,’’ the folVerDate Mar 15 2010 21:34 Jul 29, 2010 Jkt 089200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6203 E:\BILLS\H5663.RH H5663

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1 lowing: ‘‘the status of implementation of recommendations 

2 from each independent investigation panel under section 

3 103(b) received in the preceding 5 years’’. 

4 SEC. 102. SUBPOENA AUTHORITY AND MINER RIGHTS DUR5 ING INSPECTIONS AND INVESTIGATIONS. 

6 Section 103(b) (as amended by section 101) (30 U.S.C. 

7 813(b)) is further amended by adding at the end the fol8 lowing: 

9 ‘‘(4) ADDITIONAL POWERS.—For purposes of 

10 making inspections and investigations, the Secretary 

11 or the Secretary’s designee, may sign and issue sub12 poenas for the attendance and testimony of witnesses 

13 and the production of information, including all rel14 evant data, papers, books, documents, and items of 

15 physical evidence, and administer oaths. Witnesses 

16 summoned shall be paid the same fees that are paid 

17 witnesses in the courts of the United States. In car18 rying out inspections and investigations under this 

19 subsection, authorized representatives of the Secretary 

20 and attorneys representing the Secretary are author21 ized to question any individual privately. Under this 

22 section, any individual who is willing to speak with 

23 or provide a statement to such authorized representa24 tives or attorneys representing the Secretary may do 

25 so without the presence, involvement, or knowledge of 


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1 the operator or the operator’s agents or attorneys. The 

2 Secretary shall keep the identity of an individual pro3 viding such a statement confidential to the extent per4 mitted by law. Nothing in this paragraph prevents 

5 any individual from being represented by that indi6 vidual’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 miner 

10 is entrapped or otherwise prevented as the result of an acci11 dent in such mine from designating such a representative 

12 directly, such miner’s closest relative may act on behalf of 

13 such miner in designating such a representative. If any 

14 miner is not currently working in such mine as the result 

15 of an accident in such mine, but would be currently work16 ing in such mine but for such accident, such miner may 

17 designate such a representative. A representative of miners 

18 shall have the right to participate in any accident inves19 tigation the Secretary initiates pursuant to subsection (b), 

20 including the right to participate in investigative inter21 views and to review all relevant papers, books, documents 

22 and records produced in connection with the accident inves23 tigation, unless the Secretary in consultation with the At24 torney General excludes such representatives from the inves25 tigation on the grounds that inclusion would interfere with 


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1 or adversely impact a criminal investigation that is pend2 ing or under consideration.’’. 

3 SEC. 104. ADDITIONAL AMENDMENTS RELATING TO INSPEC4 TIONS AND INVESTIGATIONS. 

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

6 U.S.C. 813(a)) is amended by inserting after the third sen7 tence the following: ‘‘Such inspections shall be conducted 

8 during the various shifts and days of the week during which 

9 miners are normally present in the mine to ensure that the 

10 protections of this Act are afforded to all miners working 

11 all shifts.’’. 

12 (b) REVIEW OF MINE PATTERN STATUS.—Section 

13 103(a) is further amended by inserting before the last sen14 tence the following: ‘‘The Secretary shall, upon request by 

15 an operator, review with the appropriate mine officials the 

16 Secretary’s most recent evaluation for pattern status (as 

17 provided in section 104(e)) for that mine during the course 

18 of a mine’s regular quarterly inspection of an underground 

19 mine or a biannual inspection of a surface mine, or, at 

20 the discretion of the Secretary, during the pre-inspection 

21 conference.’’. 

22 (c) INJURY AND ILLNESS REPORTING.—Section 103(d) 

23 (30 U.S.C. 813(d)) is amended by striking the last sentence 

24 and inserting the following: ‘‘The records to be kept and 

25 made available by the operator of the mine shall include 


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1 man-hours worked and occupational injuries and illnesses 

2 with respect to the miners in their employ or under their 

3 direction or authority, and shall be maintained separately 

4 for each mine and be reported at a frequency determined 

5 by the Secretary, but at least annually. Independent con6 tractors (within the meaning of section 3(d)) shall be re7 sponsible for reporting accidents, occupational injuries and 

8 illnesses, and man-hours worked for each mine with respect 

9 to the miners in their employ or under their direction or 

10 authority, and shall be reported at a frequency determined 

11 by the Secretary, but not less than annually. Reports or 

12 records of operators and contractors required and submitted 

13 to the Secretary under this subsection shall be signed and 

14 certified as accurate and complete by a knowledgeable and 

15 responsible person possessing a certification, registration, 

16 qualification, or other approval, as provided for under sec17 tion 118. Knowingly falsifying such records or reports shall 

18 be grounds for revoking such certification, registration, 

19 qualification, or other approval under the standards estab20 lished under subsection (b)(1) of such section.’’. 

21 (d) ORDERS FOLLOWING AN ACCIDENT.—Section 

22 103(k) (30 U.S.C. 813(k)) is amended by striking ‘‘, when 

23 present,’’. 

24 (e) CONFLICT OF INTEREST IN THE REPRESENTATION

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1 ed by adding at the end the following: ‘‘During inspections 

2 and investigations under this section, and during any liti3 gation under this Act, no attorney shall represent or pur4 port to represent both the operator of a coal or other mine 

5 and any other individual, unless such individual has know6 ingly and voluntarily waived all actual and reasonably 

7 foreseeable conflicts of interest resulting from such represen8 tation. The Secretary is authorized to take such actions as 

9 the Secretary considers appropriate to ascertain whether 

10 such individual has knowingly and voluntarily waived all 

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

12 an individual cannot be represented adequately by such an 

13 attorney due to such conflicts of interest, the Secretary may 

14 petition the appropriate United States District Court which 

15 shall have jurisdiction to disqualify such attorney as coun16 sel to such individual in the matter. The Secretary may 

17 make such a motion as part of an ongoing related civil ac18 tion or as a miscellaneous action.’’. 

19 TITLE II—ENHANCED 

20 ENFORCEMENT AUTHORITY 

21 SEC. 201. TECHNICAL AMENDMENT. 

22 Section 104(d)(1) (30 U.S.C. 814(d)(1)) is amended— 

23 (1) in the first sentence— 

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

25 safety standard’’ and inserting ‘‘any provision of 


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1 this Act, including any mandatory health or 

2 safety standard or regulation promulgated under 

3 this Act’’; and 

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

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

7 standards’’; and 

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

9 mandatory health or safety standard’’ and inserting 

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

11 health or safety standard or regulation promulgated 

12 under this Act,’’. 

13 SEC. 202. A PATTERN OF RECURRING NONCOMPLIANCE OR 

14 ACCIDENTS. 

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

16 as follows: 

17 ‘‘(e) PATTERN OF RECURRING NONCOMPLIANCE OR

18 ACCIDENTS.— 

19 ‘‘(1) PATTERN STATUS.— 

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

21 subsection, a coal or other mine shall be placed 

22 in pattern status if such mine has, as determined 

23 based on the regulations promulgated under 

24 paragraph (8)— 

25 ‘‘(i) a pattern of— 


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1 ‘‘(I) citations for significant and 

2 substantial violations; 

3 ‘‘(II) citations and withdrawal 

4 orders issued for unwarrantable failure 

5 to comply with mandatory health and 

6 safety standards under section 104(d); 

7 ‘‘(III) citations for flagrant viola8 tions within the meaning of section 

9 110(b); 

10 ‘‘(IV) withdrawal orders issued 

11 under any other section of this Act 

12 (other than orders issued under sub13 sections (j) or (k) of section 103); and 

14 ‘‘(V) accidents and injuries; or 

15 ‘‘(ii) a pattern consisting of any com16 bination of citations, orders, accidents, or 

17 injuries described in subclauses (I) through 

18 (V). 

19 ‘‘(B) MITIGATING CIRCUMSTANCES.—Not20 withstanding subparagraph (A), if the Secretary, 

21 after conducting an assessment of a coal or other 

22 mine that otherwise qualifies for pattern status, 

23 certifies that there are mitigating circumstances 

24 wherein the operator has already implemented 

25 remedial measures that have reduced risks to the 


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1 health and safety of miners to the point that 

2 such risks are no longer elevated and has taken 

3 sufficient measures to ensure such elevated risk 

4 will not recur, the Secretary may deem such 

5 mine to not be in pattern status under this sub6 section. The Secretary shall issue any such cer7 tification of such mitigating circumstances that 

8 would preclude the placement of a mine in pat9 tern status as a written finding, which shall, not 

10 later than 10 days after the certification is 

11 made, be— 

12 ‘‘(i) made available on the public 

13 website of the Mine Safety and Health Ad14 ministration; and 

15 ‘‘(ii) transmitted to the Committee on 

16 Education and Labor of the House of Rep17 resentatives and the Committee on Health, 

18 Education, Labor, and Pensions of the Sen19 ate. 

20 ‘‘(C) FREQUENCY.—Not less frequently than 

21 every 6 months, the Secretary shall identify any 

22 mines which meet the criteria set forth in para23 graph (8). 


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1 ‘‘(2) ACTIONS FOLLOWING PLACEMENT OF MINE

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

3 that is in pattern status, the Secretary shall— 

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

5 the mine is being placed in pattern status; 

6 ‘‘(B) issue an order requiring such operator 

7 to cause all persons to be withdrawn from such 

8 mine, except those persons referred to in sub9 section (c) or authorized by an order of the Sec10 retary issued under this subsection; 

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

12 paragraph (3) to such operator within 3 days; 

13 and 

14 ‘‘(D) require that the number of regular in15 spections of such mine required under section 

16 103 be increased to 8 per year while the mine is 

17 in pattern status. 

18 Notice advising operators that they face potential 

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

21 under this subsection. 

22 ‘‘(3) REMEDIATION ORDER.— 

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

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

25 may require the operator to carry out one or 


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1 more of the following requirements, pursuant to 

2 a timetable for commencing and completing such 

3 actions or as a condition of miners reentering 

4 the mine: 

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

7 this Act. 

8 ‘‘(ii) Institute and implement an effec9 tive health and safety management program 

10 approved by the Secretary, including— 

11 ‘‘(I) the employment of safety pro12 fessionals, certified persons, and ade13 quate numbers of personnel for the 

14 mine, as may be required by the Sec15 retary; 

16 ‘‘(II) specific inspection, record17 keeping, reporting and other require18 ments for the mine as the Secretary 

19 may establish; and 

20 ‘‘(III) other requirements to en21 sure compliance and to protect the 

22 health and safety of miners or prevent 

23 accidents or injuries as the Secretary 

24 may determine are necessary. 


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

3 employed at the mine outside the presence of 

4 the mine operators or its agents, for the 

5 purpose of obtaining information about 

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

8 under this Act. 

9 ‘‘(B) MODIFICATION OF AND FAILURE TO

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

12 necessary, to protect the health and safety of 

13 miners. If the mine operator fails to fully comply 

14 with the remediation order during the time a 

15 mine is in pattern status, the Secretary shall re16 instate the withdrawal order under paragraph 

17 (2)(B). 

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

20 order may be granted on a temporary basis and 

21 only upon a showing that the operator took all 

22 feasible measures to comply with the order and 

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

24 comply is beyond the control of the operator. 


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1 ‘‘(4) CONDITIONS FOR LIFTING A WITHDRAWAL

2 ORDER.—A withdrawal order issued under paragraph 

3 (2)(B) shall not be lifted until the Secretary verifies 

4 that— 

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

7 order have been or are being fully abated or cor8 rected as outlined in the remediation order; and 

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

10 actions under the remediation order that are re11 quired for reopening the mine. 

12 ‘‘(5) PERFORMANCE EVALUATION.— 

13 ‘‘(A) PERFORMANCE BENCHMARKS.—The 

14 Secretary shall evaluate the performance of each 

15 mine in pattern status every 90 days during 

16 which the mine is producing and determine if, 

17 for such 90-day period— 

18 ‘‘(i) the rate of citations at such mine 

19 for significant and substantial violations— 

20 ‘‘(I) is in the top performing 35th 

21 percentile of such rates, respectively, 

22 for all mines of similar size and type; 

23 or 

24 ‘‘(II) has been reduced by 70 per25 cent from the date on which such mine 


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1 was placed in pattern status, provided 

2 that the rate of such violations is not 

3 greater than the mean for all mines of 

4 similar size and type; 

5 ‘‘(ii) the accident and injury rates at 

6 such mine are in the top performing 35th 

7 percentile of such rates, respectively, for all 

8 mines of similar size and type; and 

9 ‘‘(iii) no citations or withdrawal or10 ders for a violation under section 104(d), no 

11 withdrawal orders for imminent danger 

12 under section 107 (issued in connection 

13 with a citation), and no flagrant violations 

14 within the meaning of section 110(b), were 

15 issued for such mine. 

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

18 achieve the performance benchmarks described in 

19 subparagraph (A), the Secretary may reissue a 

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

21 remedy any recurring conditions that led to pat22 tern status under this subsection, and may mod23 ify the remediation order, as necessary, to pro24 tect the health and safety of miners. 

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


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1 ‘‘(A) PERFORMANCE BENCHMARKS.—The 

2 Secretary shall remove a coal or other mine from 

3 pattern status if, for a 1-year period during 

4 which the mine is producing— 

5 ‘‘(i) the rate of citations at such mine 

6 for significant and substantial violations— 

7 ‘‘(I) is in the top performing 25th 

8 percentile of such rates, respectively, 

9 for all mines of similar size and type; 

10 or 

11 ‘‘(II) has been reduced by 80 per12 cent from the date on which such mine 

13 was placed in pattern status, provided 

14 that the rate of such violations is not 

15 greater than the mean for all mines of 

16 similar size and type; 

17 ‘‘(ii) the accident and injury rates at 

18 such mine are in the top performing 25th 

19 percentile of such rates, respectively, for all 

20 mines of similar size and type; and 

21 ‘‘(iii) no citations or withdrawal or22 ders for violations under section 104(d), no 

23 withdrawal orders for imminent danger 

24 under section 107 (issued in connection 

25 with a citation), and no flagrant violations 


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1 within the meaning of section 110(b), were 

2 issued for such mine. 

3 ‘‘(B) CONTINUATION OF PATTERN STA4 TUS.—Should the mine operator fail to meet the 

5 performance benchmarks described in subpara6 graph (A), the Secretary shall extend the mine’s 

7 placement in pattern status until such bench8 marks are achieved. 

9 ‘‘(C) CONSTRUCTION.—A withdrawal order 

10 issued as the result of a condition that was en11 tirely beyond the operator’s ability to prevent or 

12 control shall not preclude the operator from 

13 being removed from pattern status, provided the 

14 operator did not cause or allow miners to be ex15 posed to the condition in violation of any provi16 sion of this Act or a mandatory health or safety 

17 standard or regulation promulgated under this 

18 Act. 

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

20 this subsection is contested, the review of such order 

21 shall be conducted on an expedited basis, in accord22 ance with section 105(d). 

23 ‘‘(8) REGULATIONS.— 

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

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


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1 Byrd Miner Safety and Health Act of 2010, the 

2 Secretary shall issue interim final regulations 

3 that shall define— 

4 ‘‘(i) the threshold benchmarks to trigger 

5 pattern status under paragraph (1) and 

6 cause a withdrawal order to be issued or re7 issued; and 

8 ‘‘(ii) the performance benchmarks de9 scribed in paragraphs (5)(A) and (6)(A). 

10 ‘‘(B) THRESHOLD BENCHMARKS.—In estab11 lishing threshold benchmarks to trigger pattern 

12 status for mines with significantly poor compli13 ance that contributes to unsafe or unhealthy con14 ditions, the Secretary— 

15 ‘‘(i) shall— 

16 ‘‘(I) consider rates of citations 

17 and orders described in paragraph 

18 (1)(A) and rates of reportable accidents 

19 and injuries within the preceding 180- 

20 day period; and 

21 ‘‘(II) assign appropriate weight to 

22 various types of citations, orders, acci23 dents, injuries, or other factors; and 

24 ‘‘(ii) may include— 


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1 ‘‘(I) factors such as mine type, 

2 production levels, number of miners, 

3 hours worked by miners, number of 

4 mechanized mining units (or similar 

5 production characteristics), and the 

6 presence of a representative of miners 

7 at the mine for purposes of collective 

8 bargaining; 

9 ‘‘(II) the mine’s history of cita10 tions, violations, orders, and other en11 forcement actions, or rates of report12 able accidents and injuries, over any 

13 period determined relevant by the Sec14 retary; and 

15 ‘‘(III) other factors the Secretary 

16 may determine appropriate to protect 

17 the safety and health of miners. 

18 ‘‘(C) FINAL REGULATION.—Not later than 2 

19 years after the date of enactment of the Robert 

20 C. Byrd Miner Safety and Health Act of 2010, 

21 the Secretary shall promulgate a final regulation 

22 implementing this paragraph. 

23 ‘‘(9) PUBLIC DATABASE AND INFORMATION.—The 

24 Secretary shall establish and maintain a publically 

25 available electronic database containing the data used 


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1 to determine pattern status for all coal or other mines 

2 which shall be updated as frequently as practicable. 

3 Such database shall be searchable and have the capac4 ity to provide comparative data about the health and 

5 safety at mines of similar sizes and types. The Sec6 retary shall also make publicly available— 

7 ‘‘(A) a list of all mines the Secretary places 

8 in pattern status, updated within 7 days of plac9 ing an additional mine in pattern status; 

10 ‘‘(B) the metrics, including percentile infor11 mation, used for the purposes of the performance 

12 benchmarks and threshold benchmarks described 

13 in paragraphs (5), (6), and (8); and 

14 ‘‘(C) guidance for the use of such metrics 

15 and benchmarks to assist operators in deter16 mining the performance their mines under cri17 teria established by the Secretary. 

18 ‘‘(10) OPERATOR FEES FOR ADDITIONAL INSPEC19 TIONS.— 

20 ‘‘(A) ASSESSMENT AND COLLECTION.—Be21 ginning 120 days after the date of enactment of 

22 the Robert C. Byrd Miner Safety and Health Act 

23 of 2010, the Secretary shall assess and collect 

24 fees, in accordance with this paragraph, from 

25 each coal or other mine in pattern status for the 


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1 costs of additional inspections under this sub2 section. The Secretary shall issue, by rule, a 

3 schedule of fees to be assessed against coal or 

4 other mines of varying types and sizes, and shall 

5 collect and assess amounts under this paragraph 

6 based on the schedule. 

7 ‘‘(B) USE.—Amounts collected as provided 

8 in subparagraph (A) shall only be available to 

9 the Secretary for making expenditures to carry 

10 out the additional inspections required under 

11 paragraph (2)(D). 

12 ‘‘(C) AUTHORIZATION OF APPROPRIA13 TIONS.—In addition to any other amounts au14 thorized to be appropriated under this Act, there 

15 is authorized to be appropriated to the Assistant 

16 Secretary for Mine Safety and Health for each 

17 fiscal year in which fees are collected under sub18 paragraph (A) an amount equal to the total 

19 amount of fees collected under such subpara20 graph during that fiscal year. Such amounts are 

21 authorized to remain available until expended. If 

22 on the first day of a fiscal year a regular appro23 priation to the Commission has not been enacted, 

24 the Commission shall continue to collect fees (as 

25 offsetting collections) under this subsection at the 


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1 rate in effect during the preceding fiscal year, 

2 until 5 days after the date such regular appro3 priation is enacted. 

4 ‘‘(D) COLLECTION AND CREDITING OF

5 FEES.—Fees authorized and collected under this 

6 paragraph shall be deposited and credited as off7 setting collections to the account providing ap8 propriations to the Mine Safety and Health Ad9 ministration and shall not be collected for any 

10 fiscal year except to the extent and in the 

11 amount provided in advance in appropriation 

12 Acts.’’. 

13 SEC. 203. INJUNCTIVE AUTHORITY. 

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

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

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

17 of the Secretary constitutes a continuing hazard to the 

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

19 or of mandatory health and safety standards or regulations 

20 under this Act.’’. 

21 SEC. 204. REVOCATION OF APPROVAL OF PLANS. 

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

23 (1) by redesignating subsection (d) as subsection 

24 (e); and 


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1 (2) by inserting after subsection (c) the fol2 lowing: 

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

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

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

6 that was approved by the Secretary under this Act is 

7 based on inaccurate information or that cir8 cumstances that existed when such plan was approved 

9 have materially changed and that continued oper10 ation of such mine under such plan constitutes a haz11 ard to the safety or health of miners, the Secretary 

12 shall revoke the approval of such program or plan. 

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

14 of the approval of a program or plan under sub15 section (a), the Secretary may immediately issue an 

16 order requiring the operator to cause all persons, ex17 cept those persons referred to in section 104(c), to be 

18 withdrawn from such mine or an area of such mine, 

19 and to be prohibited from entering such mine or such 

20 area, until the operator has submitted and the Sec21 retary has approved a new plan.’’. 

22 SEC. 205. CHALLENGING A DECISION TO APPROVE, MODIFY, 

23 OR REVOKE A COAL OR OTHER MINE PLAN. 

24 Section 105(e) (as redesignated by section 204(1)) (30 

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1 lowing: ‘‘In any proceeding in which a party challenges the 

2 Secretary’s decision to approve, modify, or revoke a coal 

3 or other mine plan under this Act, the Commission and 

4 the courts shall affirm the Secretary’s decision unless the 

5 challenging party establishes that such decision was arbi6 trary, capricious, an abuse of discretion, or otherwise not 

7 in accordance with law.’’. 

8 SEC. 206. GAO STUDY ON MSHA MINE PLAN APPROVAL. 

9 Not later than 1 year after the date of enactment of 

10 this Act, the Comptroller General shall provide a report to 

11 Congress on the timeliness of the Mine Safety and Health 

12 Administration’s approval of underground coal mines’ re13 quired plans and plan amendments, including— 

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

15 approval of these plans; and 

16 (2) as appropriate, recommendations for improv17 ing timeliness of plan review and for achieving 

18 prompt decisions. 

19 TITLE III—PENALTIES 

20 SEC. 301. CIVIL PENALTIES. 

21 (a) TECHNICAL CORRECTION.—Section 110(a)(1) (30 

22 U.S.C. 820(a)(1)) is amended by inserting ‘‘including any 

23 regulation promulgated under this Act,’’ after ‘‘this Act,’’. 


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1 (b) INCREASED CIVIL PENALTIES DURING PATTERN

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

3 adding at the end the following: 

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

5 an operator of a coal or other mine that is in pattern status 

6 under section 104(e) and that fails to meet the performance 

7 benchmarks set forth by the Secretary under section 

8 104(e)(5)(A) during any performance review of the mine 

9 following the first performance review shall be assessed an 

10 increased civil penalty for any violation of this Act, includ11 ing any mandatory health or safety standard or regulation 

12 promulgated under this Act. Such increased penalty shall 

13 be twice the amount that would otherwise be assessed for 

14 the violation under this Act, including the regulations pro15 mulgated under this Act, subject to the maximum civil pen16 alty established for the violation under this Act. This para17 graph shall apply to violations at such mine that occur dur18 ing the time period after the operator fails to meet the per19 formance benchmarks in this paragraph, and ending when 

20 the Secretary determines at a subsequent performance re21 view that the mine meets the performance benchmarks 

22 under section 104(e)(5)(A).’’. 

23 (c) CIVIL PENALTY FOR RETALIATION.—Section 

24 110(a) (30 U.S.C. 820(a)) is further amended— 


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1 (1) by redesignating paragraph (4) as para2 graph (5); and 

3 (2) by inserting after paragraph (3) the fol4 lowing: 

5 ‘‘(4) If any person violates section 105(c), the Sec6 retary shall propose, and the Commission shall assess, a 

7 civil penalty of not less than $10,000 or more than $100,000 

8 for the first occurrence of such violation, and not less than 

9 $20,000 or more than $200,000 for any subsequent viola10 tion, during any 3-year period.’’. 

11 SEC. 302. CIVIL AND CRIMINAL LIABILITY OF OFFICERS, DI12 RECTORS, AND AGENTS. 

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

14 as follows: 

15 ‘‘(c) CIVIL AND CRIMINAL LIABILITY OF OFFICERS, DI16 RECTORS, AND AGENTS.—Whenever an operator violates a 

17 provision of this Act, including any mandatory health or 

18 safety standard or regulation promulgated under this Act, 

19 or knowingly violates or fails or refuses to comply with any 

20 order issued under this Act or any order incorporated in 

21 a final decision issued under this Act, any director, officer, 

22 or agent of such operator who knowingly authorized, or23 dered, or carried out such violation, failure, or refusal, or 

24 any policy or practice that resulted in such violation, fail25 ure, or refusal, shall be subject to the same civil penalties, 


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1 fines, and imprisonment that may be imposed upon a per2 son under this section.’’. 

3 SEC. 303. CRIMINAL PENALTIES. 

4 (a) IN GENERAL.—Section 110(d) (30 U.S.C. 820(d)) 

5 is amended— 

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

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

9 (3) by striking ‘‘by a fine of not more than’’ and 

10 all that follows and inserting ‘‘as follows: 

11 ‘‘(A) By a fine of not more than $250,000, or by 

12 imprisonment for not more than 1 year, or both. 

13 ‘‘(B) If the conviction is for a violation com14 mitted after a previous conviction of such operator for 

15 a violation of the same mandatory health or safety 

16 standard, by a fine of not more than $1,000,000, or 

17 by imprisonment for not more than 5 years, or both. 

18 ‘‘(C) If the conviction is for a violation com19 mitted after a previous conviction of such operator for 

20 a violation of an order, by a fine of not more than 

21 $1,000,000, or by imprisonment for not more than 5 

22 years, or both. 

23 ‘‘(D) If the operator’s actions knowingly exposed 

24 miners to a significant risk of serious injury or ill25 ness or death, by a fine of not more than $1,000,000, 


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1 or by imprisonment for not more than 5 years, or 

2 both. 

3 ‘‘(E) If the operator knowingly tampered with or 

4 disabled a required safety device which exposed min5 ers to a significant risk of serious injury or illness or 

6 death, or if the conviction is for a violation described 

7 in subparagraph (D) committed after a previous con8 viction of such operator for a such a violation, by a 

9 fine of not more than $2,000,000, or by imprisonment 

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

11 (b) CRIMINAL PENALTY FOR RETALIATION.—Section 

12 110(d) (as amended by subsection (a)) is further amended 

13 by adding at the end the following: 

14 ‘‘(2) Whoever knowingly takes any action that is di15 rectly or indirectly harmful to any person, including action 

16 that interferes with the lawful employment or livelihood of 

17 any person, because such person has provided an authorized 

18 representative of the Secretary, a State or local mine safety 

19 or health officer or official, or any other law enforcement 

20 officer with any information related to the existence of a 

21 health or safety violation or an unhealthful or unsafe condi22 tion, policy, or practice under this Act shall be fined under 

23 title 18, United States Code, imprisoned for not more than 

24 10 years, or both.’’. 

25 (c) ADVANCE NOTICE OF INSPECTIONS.— 


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

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

3 ‘‘(e) Unless otherwise authorized by this Act, any per4 son that knowingly gives, causes to give, or attempts to give 

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

6 under this Act with the intention of impeding, interfering 

7 with, or adversely affecting the results of such inspection, 

8 shall be fined under title 18, United States Code, impris9 oned for not more than 5 years, or both.’’. 

10 (2) POSTING OF ADVANCE NOTICE PENALTIES.— 

11 Section 109 (30 U.S.C. 819) is amended by adding 

12 at the end the following: 

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

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

15 bulletin board described in subsection (a) and in a con16 spicuous place near each staffed entrance onto the mine 

17 property, a notice stating, in a form and manner to be pre18 scribed by the Secretary— 

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

20 to give or cause to give advance notice of any inspec21 tion to be conducted under this Act with the intention 

22 of impeding, interfering with, or adversely affecting 

23 the results of such inspection is unlawful pursuant to 

24 section 110(e); and 


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

2 under such subsection.’’. 

3 SEC. 304. COMMISSION REVIEW OF PENALTY ASSESSMENTS. 

4 Section 110(i) (30 U.S.C. 820(i)) is amended by strik5 ing ‘‘In assessing civil monetary penalties, the Commission 

6 shall consider’’ and inserting the following: ‘‘In any review 

7 of a citation and proposed penalty assessment contested by 

8 an operator, the Commission shall assess not less than the 

9 penalty derived by using the same methodology (including 

10 any point system) prescribed in regulations under this Act, 

11 so as to ensure consistency in operator penalty assessments, 

12 except that the Commission may assess a penalty for less 

13 than the amount that would result from the utilization of 

14 such methodology if the Commission finds that there are 

15 extraordinary circumstances. If there is no such method16 ology prescribed for a citation or there are such extraor17 dinary circumstances, the Commission shall assess the pen18 alty by considering’’. 

19 SEC. 305. DELINQUENT PAYMENTS AND PREJUDGMENT IN20 TEREST. 

21 (a) PRE-FINAL ORDER INTEREST.—Section 110(j) (30 

22 U.S.C. 820(j)) is amended by striking the second and third 

23 sentences and inserting the following: ‘‘Pre-final order in24 terest on such penalties shall begin to accrue on the date 

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1 cluding any mandatory health or safety standard or regula2 tion promulgated under this Act, and shall end upon the 

3 issuance of the final order. Such pre-final order interest 

4 shall be calculated at the current underpayment rate deter5 mined by the Secretary of the Treasury pursuant to section 

6 6621 of the Internal Revenue Code of 1986, and shall be 

7 compounded daily. Post-final order interest shall begin to 

8 accrue 30 days after the date a final order of the Commis9 sion or the court is issued, and shall be charged at the rate 

10 of 8 percent per annum.’’. 

11 (b) ENSURING PAYMENT OF PENALTIES.— 

12 (1) AMENDMENTS.—Section 110 (30 U.S.C. 820) 

13 is further amended— 

14 (A) by redesignating subsection (l) as sub15 section (m); and 

16 (B) by inserting after subsection (k) the fol17 lowing: 

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

19 ‘‘(1) DELINQUENT PAYMENT LETTER.—If the op20 erator of a coal or other mine fails to pay any civil 

21 penalty assessment that has become a final order of 

22 the Commission or a court within 45 days after such 

23 assessment became a final order, the Secretary shall 

24 send the operator a letter advising the operator of the 

25 consequences under this subsection of such failure to 


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1 pay. The letter shall also advise the operator of the 

2 opportunity to enter into or modify a payment plan 

3 with the Secretary based upon a demonstrated inabil4 ity to pay, the procedure for entering into such plan, 

5 and the consequences of not entering into or not com6 plying with such plan. 

7 ‘‘(2) WITHDRAWAL ORDERS FOLLOWING FAILURE

8 TO PAY.—If an operator that receives a letter under 

9 paragraph (1) has not paid the assessment by the 

10 date that is 180 days after such assessment became a 

11 final order and has not entered into a payment plan 

12 with the Secretary, the Secretary shall issue an order 

13 requiring such operator to cause all persons, except 

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

15 from, and to be prohibited from entering, the mine 

16 that is covered by the final order described in para17 graph (1), until the operator pays such assessment in 

18 full (including interest and administrative costs) or 

19 enters into a payment plan with the Secretary. If 

20 such operator enters into a payment plan with the 

21 Secretary and at any time fails to comply with the 

22 terms specified in such payment plan, the Secretary 

23 shall issue an order requiring such operator to cause 

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

25 to be withdrawn from the mine that is covered by 


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1 such final order, and to be prohibited from entering 

2 such mine, until the operator rectifies the noncompli3 ance with the payment plan in the manner specified 

4 in such payment plan.’’. 

5 (2) APPLICABILITY AND EFFECTIVE DATE.—The 

6 amendments made by paragraph (1) shall apply to 

7 all unpaid civil penalty assessments under the Fed8 eral Mine Safety and Health Act of 1977 (30 U.S.C. 

9 801 et seq.), except that, for any unpaid civil penalty 

10 assessment that became a final order of the Commis11 sion or a court before the date of enactment of this 

12 Act, the time periods under section 110(n) of the Fed13 eral Mine Safety and Health Act of 1977 (as amend14 ed) (30 U.S.C. 820(n)) shall be calculated as begin15 ning on the date of enactment of this Act instead of 

16 on the date of the final order. 

17 TITLE IV—WORKER RIGHTS AND 

18 PROTECTIONS 

19 SEC. 401. PROTECTION FROM RETALIATION. 

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

21 as follows: 

22 ‘‘(c) PROTECTION FROM RETALIATION.— 

23 ‘‘(1) RETALIATION PROHIBITED.— 

24 ‘‘(A) RETALIATION FOR COMPLAINT OR TES25 TIMONY.—No person shall discharge or in any 


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1 manner discriminate against or cause to be dis2 charged or cause discrimination against or oth3 erwise interfere with the exercise of the statutory 

4 rights of any miner or other employee of an op5 erator, representative of miners, or applicant for 

6 employment, because— 

7 ‘‘(i) such miner or other employee, rep8 resentative, or applicant for employment— 

9 ‘‘(I) has filed or made a com10 plaint, or is about to file or make a 

11 complaint, including a complaint noti12 fying the operator or the operator’s 

13 agent, or the representative of the min14 ers at the coal or other mine of an al15 leged danger or safety or health viola16 tion in a coal or other mine; 

17 ‘‘(II) instituted or caused to be in18 stituted, or is about to institute or 

19 cause to be instituted, any proceeding 

20 under or related to this Act or has tes21 tified or is about to testify in any such 

22 proceeding or because of the exercise by 

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1 ers of any right afforded by this Act, or 

2 has reported any injury or illness to 

3 an operator or agent; 

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

5 testify before Congress or any Federal 

6 or State proceeding related to safety or 

7 health in a coal or other mine; or 

8 ‘‘(IV) refused to violate any provi9 sion of this Act, including any manda10 tory health and safety standard or reg11 ulation; or 

12 ‘‘(ii) such miner is the subject of med13 ical evaluations and potential transfer 

14 under a standard published pursuant to sec15 tion 101. 

16 ‘‘(B) RETALIATION FOR REFUSAL TO PER17 FORM DUTIES.— 

18 ‘‘(i) IN GENERAL.—No person shall 

19 discharge or in any manner discriminate 

20 against a miner or other employee of an op21 erator for refusing to perform the miner’s or 

22 other employee’s duties if the miner or other 

23 employee has a good-faith and reasonable 

24 belief that performing such duties would 

25 pose a safety or health hazard to the miner 


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1 or other employee or to any other miner or 

2 employee. 

3 ‘‘(ii) STANDARD.—For purposes of 

4 clause (i), the circumstances causing the 

5 miner’s or other employee’s good-faith belief 

6 that performing such duties would pose a 

7 safety or health hazard shall be of such a 

8 nature that a reasonable person, under the 

9 circumstances confronting the miner or 

10 other employee, would conclude that there is 

11 such a hazard. In order to qualify for pro12 tection under this paragraph, the miner or 

13 other employee, when practicable, shall have 

14 communicated or attempted to communicate 

15 the safety or health concern to the operator 

16 and have not received from the operator a 

17 response reasonably calculated to allay such 

18 concern. 

19 ‘‘(2) COMPLAINT.—Any miner or other employee 

20 or representative of miners or applicant for employ21 ment who believes that he or she has been discharged, 

22 disciplined, or otherwise discriminated against by 

23 any person in violation of paragraph (1) may file a 

24 complaint with the Secretary alleging such discrimi25 nation not later than 180 days after the later of— 


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1 ‘‘(A) the last date on which an alleged vio2 lation of paragraph (1) occurs; or 

3 ‘‘(B) the date on which the miner or other 

4 employee or representative knows or should rea5 sonably have known that such alleged violation 

6 occurred. 

7 ‘‘(3) INVESTIGATION AND HEARING.— 

8 ‘‘(A) COMMENCEMENT OF INVESTIGATION

9 AND INITIAL DETERMINATION.—Upon receipt of 

10 such complaint, the Secretary shall forward a 

11 copy of the complaint to the respondent, and 

12 shall commence an investigation within 15 days 

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

14 as soon as practicable after commencing such in15 vestigation, make the determination required 

16 under subparagraph (B) regarding the reinstate17 ment of the miner or other employee. 

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

19 finds that such complaint was not frivolously 

20 brought, the Commission, on an expedited basis 

21 upon application of the Secretary, shall order the 

22 immediate reinstatement of the miner or other 

23 employee until there has been a final Commis24 sion order disposing of the underlying complaint 

25 of the miner or other employee. If either the SecVerDate Mar 15 2010 21:34 Jul 29, 2010 Jkt 089200 PO 00000 Frm 00048 Fmt 6652 Sfmt 6203 E:\BILLS\H5663.RH H5663

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1 retary or the miner or other employee pursues 

2 the underlying complaint, such reinstatement 

3 shall remain in effect until the Commission has 

4 disposed of such complaint on the merits, regard5 less of whether the Secretary pursues such com6 plaint by filing a complaint under subparagraph 

7 (D) or the miner or other employee pursues such 

8 complaint by filing an action under paragraph 

9 (4). If neither the Secretary nor the miner or 

10 other employee pursues the underlying complaint 

11 within the periods specified in paragraph (4), 

12 such reinstatement shall remain in effect until 

13 such time as the Commission may, upon motion 

14 of the operator and after providing notice and 

15 an opportunity to be heard to the parties, vacate 

16 such complaint for failure to prosecute. 

17 ‘‘(C) INVESTIGATION.—Such investigation 

18 shall include interviewing the complainant 

19 and— 

20 ‘‘(i) providing the respondent an op21 portunity to submit to the Secretary a writ22 ten response to the complaint and to present 

23 statements from witnesses or provide evi24 dence; and 


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1 ‘‘(ii) providing the complainant an op2 portunity to receive any statements or evi3 dence provided to the Secretary and rebut 

4 any statements or evidence. 

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

6 such investigation, the Secretary determines that 

7 the provisions of this subsection have been vio8 lated, the Secretary shall immediately file a com9 plaint with the Commission, with service upon 

10 the alleged violator and the miner or other em11 ployee or representative of miners alleging such 

12 discrimination or interference and propose an 

13 order granting appropriate relief. 

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

15 Commission shall afford an opportunity for a 

16 hearing (in accordance with section 554 of title 

17 5, United States Code, but without regard to 

18 subsection (a)(3) of such section) and thereafter 

19 shall issue an order, based upon findings of fact, 

20 affirming, modifying, or vacating the Secretary’s 

21 proposed order, or directing other appropriate 

22 relief. Such order shall become final 30 days 

23 after its issuance. The complaining miner or 

24 other employee, representative, or applicant for 

25 employment may present additional evidence on 


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1 his or her own behalf during any hearing held 

2 pursuant to this paragraph. 

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

4 authority in such proceedings to require a person 

5 committing a violation of this subsection to take 

6 such affirmative action to abate the violation 

7 and prescribe a remedy as the Commission con8 siders appropriate, including— 

9 ‘‘(i) the rehiring or reinstatement of 

10 the miner or other employee with back pay 

11 and interest and without loss of position or 

12 seniority, and restoration of the terms, 

13 rights, conditions, and privileges associated 

14 with the complainant’s employment; 

15 ‘‘(ii) any other compensatory and con16 sequential damages sufficient to make the 

17 complainant whole, and exemplary damages 

18 where appropriate; and 

19 ‘‘(iii) expungement of all warnings, 

20 reprimands, or derogatory references that 

21 have been placed in paper or electronic 

22 records or databases of any type relating to 

23 the actions by the complainant that gave 

24 rise to the unfavorable personnel action, 

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1 mission of a copy of the decision on the 

2 complaint to any person whom the com3 plainant reasonably believes may have re4 ceived such unfavorable information. 

5 ‘‘(4) NOTICE TO AND ACTION OF COMPLAIN6 ANT.— 

7 ‘‘(A) NOTICE TO COMPLAINANT.—Not later 

8 than 90 days of the receipt of a complaint filed 

9 under paragraph (2), the Secretary shall notify, 

10 in writing, the miner or other employee, appli11 cant for employment, or representative of miners 

12 of his determination whether a violation has oc13 curred. 

14 ‘‘(B) ACTION OF COMPLAINANT.—If the Sec15 retary, upon investigation, determines that the 

16 provisions of this subsection have not been vio17 lated, the complainant shall have the right, with18 in 30 days after receiving notice of the Sec19 retary’s determination, to file an action in his or 

20 her own behalf before the Commission, charging 

21 discrimination or interference in violation of 

22 paragraph (1). 

23 ‘‘(C) HEARING AND DECISION.—The Com24 mission shall afford an opportunity for a hear25 ing (in accordance with section 554 of title 5, 


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1 United States Code, but without regard to sub2 section (a)(3) of such section), and thereafter 

3 shall issue an order, based upon findings of fact, 

4 dismissing or sustaining the complainant’s 

5 charges and, if the charges are sustained, grant6 ing such relief as it deems appropriate as de7 scribed in paragraph (3)(D). Such order shall 

8 become final 30 days after its issuance. 

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

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

12 has occurred only if the complainant demonstrates 

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

15 the adverse action alleged in the complaint. A deci16 sion or order that is favorable to the complainant 

17 shall not be issued pursuant to this subsection if the 

18 respondent demonstrates by clear and convincing evi19 dence that the respondent would have taken the same 

20 adverse action in the absence of such conduct. 

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

22 issued sustaining the complainant’s charges under 

23 this subsection, a sum equal to the aggregate amount 

24 of all costs and expenses, including attorney’s fees, as 

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1 ably incurred by the complainant for, or in connec2 tion with, the institution and prosecution of such pro3 ceedings shall be assessed against the person commit4 ting such violation. The Commission shall determine 

5 whether such costs and expenses were reasonably in6 curred by the complainant without reference to wheth7 er the Secretary also participated in the proceeding. 

8 ‘‘(7) EXPEDITED PROCEEDINGS; JUDICIAL RE9 VIEW.—Proceedings under this subsection shall be ex10 pedited by the Secretary and the Commission. Any 

11 order issued by the Commission under this subsection 

12 shall be subject to judicial review in accordance with 

13 section 106. Violations by any person of paragraph 

14 (1) shall be subject to the provisions of sections 108 

15 and 110(a)(4). 

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

17 remedies provided for in this subsection may not be 

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

19 of employment, including by any pre-dispute arbitra20 tion agreement or collective bargaining agreement. 

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

22 be construed to diminish the rights, privileges, or 

23 remedies of any employee who exercises rights under 

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

25 any collective bargaining agreement.’’. 


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1 SEC. 402. PROTECTION FROM LOSS OF PAY. 

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

3 follows: 

4 ‘‘SEC. 111. ENTITLEMENT OF MINERS. 

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

6 ‘‘(1) WITHDRAWAL ORDERS.—If a coal or other 

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

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

9 miners working during the shift when such order was 

10 issued who are idled by such order shall be entitled, 

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

12 to full compensation by the operator at their regular 

13 rates of pay for the period they are idled, but for not 

14 more than the balance of such shift. If such order is 

15 not terminated prior to the next working shift, all 

16 miners on that shift who are idled by such order shall 

17 be entitled to full compensation by the operator at 

18 their regular rates of pay for the period they are 

19 idled, but for not more than four hours of such shift. 

20 If a coal or other mine or area of such mine is closed 

21 by an order issued under section 104, 107 (in connec22 tion with a citation), 108, or 110, all miners who are 

23 idled by such order shall be entitled, regardless of the 

24 result of any review of such order, to full compensa25 tion by the operator at their regular rates of pay and 

26 in accordance with their regular schedules of pay for 


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1 the entire period for which they are idled, not to ex2 ceed 60 days. 

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

4 Secretary finds that such mine or such area of a mine 

5 was closed by the operator in anticipation of the 

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

7 by such closure shall be entitled to full compensation 

8 by the operator at their regular rates of pay and in 

9 accordance with their regular schedules of pay, from 

10 the time of such closure until such time as the Sec11 retary authorizes reopening of such mine or such area 

12 of the mine, not to exceed 60 days, except where an 

13 operator promptly withdraws miners upon discovery 

14 of a hazard, and notifies the Secretary where re15 quired, and within the prescribed time period. 

16 ‘‘(3) REFUSAL TO COMPLY.—Whenever an oper17 ator violates or fails or refuses to comply with any 

18 order issued under section 103, 104, 107, 108, or 110, 

19 all miners employed at the affected mine who would 

20 have been withdrawn from, or prevented from enter21 ing, such mine or area thereof as a result of such 

22 order shall be entitled to full compensation by the op23 erator at their regular rates of pay, in addition to 

24 pay received for work performed after such order was 

25 issued, for the period beginning when such order was 


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1 issued and ending when such order is complied with, 

2 vacated, or terminated. 

3 ‘‘(b) ENFORCEMENT.— 

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

5 shall have authority to order compensation due under 

6 this section upon the filing of a complaint by a miner 

7 or his representative and after opportunity for hear8 ing subject to section 554 of title 5, United States 

9 Code. Whenever the Commission issues an order sus10 taining the complaint under this subsection in whole 

11 or in part, the Commission shall award the complain12 ant reasonable attorneys’ fees and costs. 

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

14 Consistent with the authority of the Secretary to 

15 order miners withdrawn from a mine under this Act, 

16 the Secretary shall order a mine that has been subject 

17 to a withdrawal order under section 103, 104, 107, 

18 108, or 110, and has reopened, to be closed again if 

19 compensation in accordance with the provisions of 

20 this section is not paid by the end of the next regu21 larly scheduled payroll period following the lifting of 

22 a withdrawal order. 

23 ‘‘(c) EXPEDITED REVIEW.—If an order is issued which 

24 results in payments to miners under subsection (a), the op25 erators shall have the right to an expedited review before 


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1 the Commission using timelines and procedures established 

2 pursuant to section 316(b)(2)(G)(ii).’’. 

3 SEC. 403. UNDERGROUND COAL MINER EMPLOYMENT 

4 STANDARD FOR MINES PLACED IN PATTERN 

5 STATUS. 

6 The Federal Mine Safety and Health Act of 1977 is 

7 further amended by adding at the end of title I the fol8 lowing: 

9 ‘‘SEC. 117. UNDERGROUND COAL MINER EMPLOYMENT 

10 STANDARD FOR MINES PLACED IN PATTERN 

11 STATUS. 

12 ‘‘(a) IN GENERAL.—For purposes of ensuring miners’ 

13 health and safety and miners’ right to raise concerns there14 of, when an underground coal mine is placed in pattern 

15 status pursuant to section 104(e), and for 3 years after such 

16 placement, the operator of such mine may not discharge or 

17 constructively discharge a miner who is paid on an hourly 

18 basis and employed at such underground coal mine without 

19 reasonable job-related grounds based on a failure to satisfac20 torily perform job duties, including compliance with this 

21 Act and with mandatory health and safety standards or 

22 other regulations issued under this Act, or other legitimate 

23 business reason, where the miner has completed the employ24 er’s probationary period, not to exceed 6 months. 


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1 ‘‘(b) CAUSE OF ACTION.—A miner aggrieved by a vio2 lation of subsection (a) may file a complaint in Federal 

3 district court in the district where the mine is located with4 in 1 year of such violation. 

5 ‘‘(c) REMEDIES.—In an action under subsection (b), 

6 for any prevailing miner the court shall take affirmative 

7 action to further the purposes of the Act, which may include 

8 reinstatement with backpay and compensatory damages. 

9 Reasonable attorneys’ fees and costs shall be awarded to any 

10 prevailing miner under this section. 

11 ‘‘(d) PRE-DISPUTE WAIVER PROHIBITED.—A miner’s 

12 right to a cause of action under this section may not be 

13 waived with respect to disputes that have not arisen as of 

14 the time of the waiver. 

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

16 construed to limit the availability of rights and remedies 

17 of miners under any other State or Federal law or a collec18 tive bargaining agreement.’’. 

19 TITLE V—MODERNIZING HEALTH 

20 AND SAFETY STANDARDS 

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

22 Section 303(d) (30 U.S.C. 863(d)) is amended by add23 ing at the end the following: 

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

25 the interim final rules promulgated under subparagraph 


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1 (C), each operator of an underground coal mine shall imple2 ment a communication program at the underground coal 

3 mine to ensure that each miner is orally briefed on and 

4 made aware of, prior to traveling to or arriving at the min5 er’s work area and commencing the miner’s assigned 

6 tasks— 

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

8 violate a mandatory health or safety standard or a 

9 plan approved under this Act, where the miner is ex10 pected to work or travel; and 

11 ‘‘(ii) the general conditions of that miner’s as12 signed working section or other area where the miner 

13 is expected to work or travel. 

14 ‘‘(B) Not later than 180 days after the date of enact15 ment of the Robert C. Byrd Miner Safety and Health Act 

16 of 2010, the Secretary shall promulgate interim final rules 

17 implementing the requirements of subparagraph (A). The 

18 Secretary shall issue a final rule not later than 2 years 

19 after such date.’’. 

20 SEC. 502. ROCK DUST STANDARDS. 

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

22 is amended— 

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

24 following: ‘‘ROCK DUST.— 

25 ‘‘(1) IN GENERAL.—Where rock’’; 


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1 (2) by striking ‘‘65 per centum’’ and all that fol2 lows and inserting ‘‘80 percent. Where methane is 

3 present in any ventilating current, the percentage of 

4 incombustible content of such combined dusts shall be 

5 increased 0.4 percent for each 0.1 percent of meth6 ane.’’; and 

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

8 ‘‘(2) METHODS OF MEASUREMENT.— 

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

10 underground coal mine shall take accurate and 

11 representative samples which shall measure the 

12 total incombustible content of combined coal 

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

14 ensure that the coal dust is kept below explosive 

15 levels through the appropriate application of 

16 rock dust. 

17 ‘‘(B) DIRECT READING MONITORS.—By the 

18 later of June 15, 2011, or the date that is 30 

19 days after the Secretary of Health and Human 

20 Services has certified in writing that direct read21 ing monitors are commercially available to 

22 measure total incombustible content in samples 

23 of combined coal dust, rock dust, and other dust 

24 and the Department of Labor has approved such 

25 monitors for use in underground coal mines, the 


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1 Secretary shall require operators to take such 

2 dust samples using direct 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 Miner Safety and 

6 Health Act of 2010, promulgate an interim final 

7 rule that prescribes methods for operator sam8 pling of total incombustible content in samples of 

9 combined coal dust, rock dust, and other dust 

10 using direct reading monitors and includes re11 quirements for locations, methods, and intervals 

12 for mandatory operator sampling. 

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

14 1 year after the date of enactment of the Robert 

15 C. Byrd Miner Safety and Health Act of 2010, 

16 the Secretary of Health and Human Services 

17 shall, based upon the latest research, recommend 

18 to the Secretary of Labor any revisions to the 

19 mandatory operator sampling locations, meth20 ods, and intervals included in the interim final 

21 rule described in subparagraph (B) that may be 

22 warranted in light of such research. 

23 ‘‘(3) LIMITATION.—Until a final rule is issued 

24 by the Secretary under section 502(b)(2) of the Robert 

25 C. Byrd Miner Safety and Health Act of 2010, any 


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1 measurement taken by a direct reading monitor de2 scribed in paragraph (2) shall not be admissible to es3 tablish a violation in an enforcement action under 

4 this Act.’’. 

5 (b) REPORT AND RULEMAKING AUTHORITY.— 

6 (1) REPORT.—Not later than 2 years after the 

7 date of enactment of this Act, the Secretary of Health 

8 and Human Services, in consultation with the Sec9 retary of Labor, shall prepare and submit, to the 

10 Committee on Education and Labor of the House of 

11 Representatives and the Committee on Health, Edu12 cation, Labor, and Pensions of the Senate, a report— 

13 (A) regarding whether any direct reading 

14 monitor described in section 304(d)(2)(B) of the 

15 Federal Mine Safety and Health Act of 1977 (30 

16 U.S.C. 864(d)(2)(B)) is sufficiently reliable and 

17 accurate for the enforcement of the mandatory 

18 health or safety standards by the Secretary of 

19 Labor under such Act, and whether additional 

20 improvement to such direct reading monitor, or 

21 additional verification regarding reliability and 

22 accuracy, would be needed for enforcement pur23 poses; and 

24 (B) identifying any limitations or impedi25 ments for such use in underground coal mines. 


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1 (2) AUTHORITY.—If the Secretary determines 

2 that such direct reading monitor is sufficiently reli3 able and accurate for the enforcement of mandatory 

4 health and safety standards under the Federal Mines 

5 Safety and Health Act of 1977 following such report 

6 or any update thereto, the Secretary shall promulgate 

7 a final rule authorizing the use of such direct reading 

8 monitor for purposes of compliance and enforcement, 

9 in addition to other methods for determining total in10 combustible content. Such rule shall specify manda11 tory operator sampling locations, methods, and inter12 vals. 

13 SEC. 503. ATMOSPHERIC MONITORING SYSTEMS. 

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

15 at the end the following: 

16 ‘‘(u) ATMOSPHERIC MONITORING SYSTEMS.— 

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

18 than 1 year after the date of enactment of the Robert 

19 C. Byrd Miner Safety and Health Act of 2010, the 

20 Director of the National Institute for Occupational 

21 Safety and Health, acting through the Office of Mine 

22 Safety and Health Research, in consultation, includ23 ing through technical working groups, with operators, 

24 vendors, State mine safety agencies, the Secretary, 


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1 and labor representatives of miners, shall issue rec2 ommendations to the Secretary regarding— 

3 ‘‘(A) how to ensure that atmospheric moni4 toring systems are utilized in the underground 

5 coal mining industry to maximize the health and 

6 safety of underground coal miners; 

7 ‘‘(B) the implementation of redundant sys8 tems, such as the bundle tubing system, that can 

9 continuously monitor the mine atmosphere fol10 lowing incidents such as fires, explosions, en11 trapments, and inundations; and 

12 ‘‘(C) other technologies available to conduct 

13 continuous atmospheric monitoring. 

14 ‘‘(2) ATMOSPHERIC MONITORING SYSTEM REGU15 LATIONS.—Not later than 1 year following the receipt 

16 of the recommendations described in paragraph (1), 

17 the Secretary shall promulgate regulations requiring 

18 that each operator of an underground coal mine in19 stall atmospheric monitoring systems, consistent with 

20 such recommendations, that— 

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

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


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1 airflow direction, as appropriate, with sensing, 

2 annunciating, and recording capabilities; and 

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

5 SEC. 504. TECHNOLOGY RELATED TO RESPIRABLE DUST. 

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

7 (1) by striking ‘‘of Health, Education, and Wel8 fare’’; and 

9 (2) by striking the second sentence and inserting 

10 the following: ‘‘Not later than 2 years after the date 

11 of enactment of the Robert C. Byrd Miner Safety and 

12 Health Act of 2010, the Secretary shall promulgate 

13 final regulations that require operators, beginning on 

14 the date such regulations are issued, to provide coal 

15 miners with the maximum feasible protection from 

16 respirable dust, including coal and silica dust, that is 

17 achievable through environmental controls, and that 

18 meet the applicable standards.’’. 

19 SEC. 505. REFRESHER TRAINING ON MINER RIGHTS AND 

20 RESPONSIBILITIES. 

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

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

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

24 hours of refresher training not less frequently than 

25 once every 12 months, and such training shall include 


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1 one hour of training on the statutory rights and re2 sponsibilities of miners and their representatives 

3 under this Act and other applicable Federal and State 

4 law, pursuant to a program of instruction developed 

5 by the Secretary and delivered by an employee of the 

6 Administration or by a trainer approved by the Ad7 ministration that is a party independent from the op8 erator;’’. 

9 (b) NATIONAL HAZARD REPORTING HOTLINE.—Sec10 tion 115 (30 U.S.C. 825) is further amended— 

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

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

13 (2) by inserting after subsection (b) the fol14 lowing: 

15 ‘‘(c) Any health and safety training program of in16 struction provided under this section shall include distribu17 tion to miners of information regarding miners’ rights 

18 under the Act, as well as a toll-free hotline telephone num19 ber, which the Secretary shall maintain to receive com20 plaints from miners and the public regarding hazardous 

21 conditions, discrimination, safety or health violations, or 

22 other mine safety or health concerns. Information regarding 

23 the hotline shall be provided in a portable, convenient for24 mat, such as a durable wallet card, to enable miners to keep 

25 the information on their person.’’. 


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1 (c) TIMING OF INITIAL STATUTORY RIGHTS TRAIN2 ING.—Notwithstanding section 115 of the Federal Mine 

3 Safety and Health Act (as amended by subsection (a)) (30 

4 U.S.C. 825) or the health and safety training program ap5 proved under such section, an operator shall ensure that 

6 all miners already employed by the operator on the date 

7 of enactment of this Act shall receive the one hour of statu8 tory rights and responsibilities training described in section 

9 115(a)(3) of such Act not later than 180 days after such 

10 date. 

11 SEC. 506. AUTHORITY TO MANDATE ADDITIONAL TRAINING. 

12 (a) IN GENERAL.—Section 115 (30 U.S.C. 825) is fur13 ther amended by redesignating subsections (e) and (f) (as 

14 redesignated) as subsections (f) and (g) and inserting after 

15 subsection (d) (as redesignated) the following: 

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

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

19 to issue an order requiring that an operator of a coal 

20 or other mine provide additional training beyond 

21 what is otherwise required by law, and specifying the 

22 time within which such training shall be provided, if 

23 the Secretary finds that— 

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


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1 ‘‘(ii) such mine has experienced accident 

2 and injury rates, citations for violations of this 

3 Act (including mandatory health or safety stand4 ards or regulations promulgated under this Act), 

5 citations for significant and substantial viola6 tions, or withdrawal orders issued under this Act 

7 at a rate above the average for mines of similar 

8 size and type; and 

9 ‘‘(B) additional training would benefit the 

10 health and safety of miners at the mine. 

11 ‘‘(2) WITHDRAWAL ORDER.—If the operator fails 

12 to provide training ordered under paragraph (1) 

13 within the specified time, the Secretary shall issue an 

14 order requiring such operator to cause all affected 

15 persons, except those persons referred to in section 

16 104(c), to be withdrawn, and to be prohibited from 

17 entering such mine, until such operator has provided 

18 such training.’’. 

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

20 (30 U.S.C. 814(g)(2)) is amended by striking ‘‘under para21 graph (1)’’ both places it appears and inserting ‘‘under 

22 paragraph (1) or under section 115(e)’’. 

23 SEC. 507. CERTIFICATION OF PERSONNEL. 

24 (a) IN GENERAL.—Title I is further amended by add25 ing at the end the following: 


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1 ‘‘SEC. 118. CERTIFICATION OF PERSONNEL. 

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

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

4 mine to perform any duties or provide any training that 

5 this Act, including a mandatory health or safety standard 

6 or regulation promulgated pursuant to this Act, requires 

7 to be performed or provided by a certified, registered, quali8 fied, or otherwise approved person, shall be permitted to 

9 perform such duties or provide such training only if such 

10 person has a current certification, registration, qualifica11 tion, or approval to perform such duties or provide such 

12 training consistent with the requirements of this section. 

13 ‘‘(b) ESTABLISHMENT OF CERTIFICATION REQUIRE14 MENTS AND PROCEDURES.— 

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

16 the date of enactment of the Robert C. Byrd Miner 

17 Safety and Health Act of 2010, the Secretary shall 

18 issue mandatory standards to establish— 

19 ‘‘(A) requirements for such certification, 

20 registration, qualification, or other approval, in21 cluding the experience, examinations, and ref22 erences that may be required as appropriate; 

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

24 procedures for obtaining and renewing such cer25 tification, registration, qualification, or other 

26 approval; and 


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1 ‘‘(C) procedures and criteria for revoking 

2 such certification, registration, qualification, or 

3 other approval, including procedures that ensure 

4 that the Secretary (or a State agency, as appli5 cable) responds to requests for revocation and 

6 that the names of individuals whose certification 

7 or other approval has been revoked are provided 

8 to and maintained by the Secretary, and are 

9 made available to appropriate State agencies 

10 through an electronic database. 

11 ‘‘(2) COORDINATION WITH STATES.—In devel12 oping such standards, the Secretary shall consult with 

13 States that have miner certification programs to en14 sure effective coordination with existing State stand15 ards and requirements for certification. The stand16 ards required under paragraph (1) shall provide that 

17 the certification, registration, qualification, or other 

18 approval of the State in which the coal or other mine 

19 is located satisfies the requirement of subsection (a) if 

20 the State’s program of certification, registration, 

21 qualification, or other approval is no less stringent 

22 than the standards established by the Secretary under 

23 paragraph (1). 

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


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1 ‘‘(1) ASSESSMENT AND COLLECTION.—Beginning 

2 180 days after the date of enactment of the Robert C. 

3 Byrd Miner Safety and Health Act of 2010, the Sec4 retary shall assess and collect fees, in accordance with 

5 this subsection, from each operator for each person 

6 certified under this section. Fees shall be assessed and 

7 collected in amounts determined by the Secretary as 

8 necessary to fund the certification programs estab9 lished under this section. 

10 ‘‘(2) USE.—Amounts collected as provided in 

11 paragraph (1) shall only be available to the Sec12 retary, as provided in paragraph (3), for making ex13 penditures to carry out the certification programs es14 tablished under this subsection. 

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

16 addition to funds authorized to be appropriated 

17 under section 114, there is authorized to be appro18 priated to the Assistant Secretary for Mine Safety 

19 and Health for each fiscal year in which fees are col20 lected under paragraph (1) an amount equal to the 

21 total amount of fees collected under paragraph (1) 

22 during that fiscal year. Such amounts are authorized 

23 to remain available until expended. If on the first day 

24 of a fiscal year a regular appropriation to the Com25 mission has not been enacted, the Commission shall 


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1 continue to collect fees (as offsetting collections) under 

2 this subsection at the rate in effect during the pre3 ceding fiscal year, until 5 days after the date such 

4 regular appropriation is enacted. 

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

6 Fees authorized and collected under this subsection 

7 shall be deposited and credited as offsetting collections 

8 to the account providing appropriations to the Mine 

9 Safety and Health Administration and shall not be 

10 collected for any fiscal year except to the extent and 

11 in the amount provided in advance in appropriation 

12 Acts. 

13 ‘‘(d) CITATION; WITHDRAWAL ORDER.—Any operator 

14 who permits a person to perform any of the health or safety 

15 related functions described in subsection (a) without a cur16 rent certification which meets the requirements of this sec17 tion shall be considered to have committed an unwarrant18 able failure under section 104(d)(1), and the Secretary shall 

19 issue an order requiring that the miner be withdrawn or 

20 reassigned to duties that do not require such certification.’’. 

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

22 U.S.C. 878) is amended— 

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


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1 (2) in subsection (c), by redesignating para2 graphs (1) through (3) as subparagraphs (A) through 

3 (C), respectively; 

4 (3) in subsection (g), by redesignating para5 graphs (1) through (4) as subparagraphs (A) through 

6 (D), respectively; and 

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

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

9 TITLE VI—ADDITIONAL MINE 

10 SAFETY PROVISIONS 

11 SEC. 601. DEFINITIONS. 

12 (a) DEFINITION OF OPERATOR.—Section 3(d) is 

13 amended to read as follows: 

14 ‘‘(d) ‘operator’ means— 

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

16 that— 

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

18 other mine; or 

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

20 having the authority to make management 

21 or operational decisions that affect, directly 

22 or indirectly, the health or safety at such 

23 mine; or 

24 ‘‘(2) any independent contractor performing 

25 services or construction at such mine;’’. 


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

2 802(e)) is amended by striking ‘‘the miners’’ and inserting 

3 ‘‘any miner’’. 

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

5 802(g)) is amended by inserting after ‘‘or other mine’’ the 

6 following: ‘‘, and includes any individual who is not cur7 rently working in a coal or other mine but would be cur8 rently working in such mine, but for an accident in such 

9 mine’’. 

10 (d) DEFINITION OF SIGNIFICANT AND SUBSTANTIAL

11 VIOLATIONS.—Section 3 (30 U.S.C. 802) is further amend12 ed— 

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

14 semicolon; 

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

16 the end and inserting a semicolon; 

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

18 the end and inserting ‘‘; and’’; and 

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

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

21 means a violation of this Act, including any manda22 tory health or safety standard or regulation promul23 gated under this Act, that is of such nature as could 

24 significantly and substantially contribute to the cause 


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1 and effect of a coal or other mine safety or health haz2 ard as described in section 104(d).’’. 

3 SEC. 602. ASSISTANCE TO STATES. 

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

5 (1) in subsection (a)— 

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

7 by striking ‘‘, in coordination with the Secretary 

8 of Health, Education, and Welfare and the Sec9 retary of the Interior,’’; 

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

11 after the semicolon; 

12 (C) in paragraph (3), by striking the period 

13 and inserting ‘‘; and’’; and 

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

15 ‘‘(4) to assist such State in developing and im16 plementing any certification program for coal or 

17 other mines required for compliance with section 

18 118.’’; and 

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

20 fiscal year 1970, and $10,000,000 annually in each 

21 succeeding fiscal year’’ and inserting ‘‘$20,000,000 for 

22 each fiscal year’’. 

23 SEC. 603. BLACK LUNG MEDICAL REPORTS. 

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

25 901 et seq.) is amended by adding at the end the following: 


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1 ‘‘SEC. 435. MEDICAL REPORTS. 

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

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

4 examination regarding the miner’s respiratory or pul5 monary condition shall, not later than 14 days after the 

6 miner has been examined, deliver to the claimant a com7 plete copy of the examining physician’s report. The exam8 ining physician’s report shall be in writing and shall set 

9 out in detail the examiner’s findings, including any diag10 noses and conclusions and the results of any diagnostic im11 aging techniques and tests that were performed on the 

12 miner.’’. 

13 SEC. 604. RULES OF APPLICATION TO CERTAIN MINES. 

14 (a) INAPPLICABILITY OF AMENDMENTS TO CERTAIN

15 MINES.— 

16 (1) SPECIAL RULE.—The amendments made by 

17 this Act shall not apply to— 

18 (A) surface mines, except for surface facili19 ties or impoundments physically connected to— 

20 (i) underground coal mines; or 

21 (ii) other underground mines which 

22 are gassy mines; or 

23 (B) underground mines which are neither 

24 coal mines nor gassy mines. 

25 (2) DEFINITION.—For purposes of this section, 

26 the term ‘‘gassy mine’’ means a mine, tunnel, or other 


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1 underground workings in which a flammable mixture 

2 has been ignited, or has been found with a permissible 

3 flame safety lamp, or has been determined by air 

4 analysis to contain 0.25 percent or more (by volume) 

5 of methane in any open workings when tested at a 

6 point not less than 12 inches from the roof, face of 

7 rib. 

8 (b) RULE OF CONSTRUCTION RELATING TO APPLICA9 BILITY OF CERTAIN PROVISIONS TO SURFACE MINES.— 

10 Title I is further amended by adding at the end the fol11 lowing: 

12 ‘‘SEC. 119. APPLICABILITY OF CERTAIN PROVISIONS TO 

13 CERTAIN MINES. 

14 ‘‘(a) RULE OF CONSTRUCTION.—With respect to the 

15 mines described in subsection (b), this Act as in effect on 

16 the date before the date of enactment of the Robert C. Byrd 

17 Miner Safety and Health Act of 2010, shall continue to 

18 apply to such mines as then in effect. 

19 ‘‘(b) APPLICABLE MINES.— 

20 ‘‘(1) IN GENERAL.—The mines referred to in sub21 section (a) are— 

22 ‘‘(A) surface mines, except for surface facili23 ties or impoundments physically connected to— 

24 ‘‘(i) underground coal mines; or 


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1 ‘‘(ii) other underground mines which 

2 are gassy mines; and 

3 ‘‘(B) underground mines which are neither 

4 coal mines nor gassy mines. 

5 ‘‘(2) DEFINITION.—As used in paragraph (1), 

6 the term ‘gassy mine’ means a mine, tunnel, or other 

7 underground workings in which a flammable mixture 

8 has been ignited, or has been found with a permissible 

9 flame safety lamp, or has been determined by air 

10 analysis to contain 0.25 percent or more (by volume) 

11 of methane in any open workings when tested at a 

12 point not less than 12 inches from the roof, face of 

13 rib. 

14 ‘‘(c) SAVINGS PROVISION.—Nothing in this section 

15 shall impact the authority of the Secretary to promulgate 

16 or modify regulations pursuant to the authority under any 

17 such provisions as in effect on the date before the date of 

18 enactment of the Robert C. Byrd Miner Safety and Health 

19 Act of 2010, or shall be construed to alter or modify prece20 dent with regards to the Commission or courts.’’. 


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1 TITLE VII—AMENDMENTS TO 

2 THE OCCUPATIONAL SAFETY 

3 AND HEALTH ACT 

4 SEC. 701. ENHANCED PROTECTIONS FROM RETALIATION. 

5 (a) EMPLOYEE ACTIONS.—Section 11(c)(1) of the Oc6 cupational Safety and Health Act of 1970 (29 U.S.C. 

7 660(c)(1)) is amended— 

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

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

10 ‘‘discharge or cause to be discharged, or in any man11 ner discriminate against or cause to be discriminated 

12 against, any employee because— 

13 ‘‘(A) such’’; 

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

15 the following: ‘‘this Act; 

16 ‘‘(B) such employee has’’; 

17 (3) by striking ‘‘in any such proceeding or be18 cause of the exercise’’ and inserting the following: ‘‘be19 fore Congress or in any Federal or State proceeding 

20 related to safety or health; 

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

22 provision of this Act; or 

23 ‘‘(D) of the exercise’’; and 

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

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


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

2 the employer, safety and health committee involved, or 

3 employee safety and health representative involved’’. 

4 (b) PROHIBITION OF RETALIATION.—Section 11(c) of 

5 such Act (29 U.S.C. 660(c)) is amended by striking para6 graph (2) and inserting the following: 

7 ‘‘(2) PROHIBITION OF RETALIATION.—(A) No 

8 person shall discharge, or cause to be discharged, or 

9 in any manner discriminate against, or cause to be 

10 discriminated against, an employee for refusing to 

11 perform the employee’s duties if the employee has a 

12 reasonable apprehension that performing such duties 

13 would result in serious injury to, or serious impair14 ment of the health of, the employee or other employees. 

15 ‘‘(B) For purposes of subparagraph (A), the cir16 cumstances causing the employee’s good-faith belief 

17 that performing such duties would pose a safety or 

18 health hazard shall be of such a nature that a reason19 able person, under the circumstances confronting the 

20 employee, would conclude that there is such a hazard. 

21 In order to qualify for protection under this para22 graph, the employee, when practicable, shall have 

23 communicated or attempted to communicate the safe24 ty or health concern to the employer and have not reVerDate Mar 15 2010 21:34 Jul 29, 2010 Jkt 089200 PO 00000 Frm 00081 Fmt 6652 Sfmt 6203 E:\BILLS\H5663.RH H5663

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1 ceived from the employer a response reasonably cal2 culated to allay such concern.’’. 

3 (c) PROCEDURE.—Section 11(c) of such Act (29 U.S.C. 

4 660(c)) is amended by striking paragraph (3) and inserting 

5 the following: 

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

7 that the employee has been discharged, disciplined, or 

8 otherwise discriminated against by any person in vio9 lation of paragraph (1) or (2) may seek relief for such 

10 violation by filing a complaint with the Secretary 

11 under paragraph (5). 

12 ‘‘(4) STATUTE OF LIMITATIONS.— 

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

14 the action permitted by paragraph (3)(A) not 

15 later than 180 days after the later of— 

16 ‘‘(i) the date on which an alleged viola17 tion of paragraph (1) or (2) occurs; or 

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

19 knows or should reasonably have known 

20 that such alleged violation occurred. 

21 ‘‘(B) REPEAT VIOLATION.—Except in cases 

22 when the employee has been discharged, a viola23 tion of paragraph (1) or (2) shall be considered 

24 to have occurred on the last date an alleged re25 peat violation occurred. 


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1 ‘‘(5) INVESTIGATION.— 

2 ‘‘(A) IN GENERAL.—An employee may, 

3 within the time period required under para4 graph (4)(B), file a complaint with the Secretary 

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

6 the complaint alleges a prima facie case, the Sec7 retary shall conduct an investigation of the alle8 gations in the complaint, which— 

9 ‘‘(i) shall include— 

10 ‘‘(I) interviewing the complain11 ant; 

12 ‘‘(II) providing the respondent an 

13 opportunity to— 

14 ‘‘(aa) submit to the Secretary 

15 a written response to the com16 plaint; and 

17 ‘‘(bb) meet with the Secretary 

18 to present statements from wit19 nesses or provide evidence; and 

20 ‘‘(III) providing the complainant 

21 an opportunity to— 

22 ‘‘(aa) receive any statements 

23 or evidence provided to the Sec24 retary; 


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1 ‘‘(bb) meet with the Sec2 retary; and 

3 ‘‘(cc) rebut any statements or 

4 evidence; and 

5 ‘‘(ii) may include issuing subpoenas 

6 for the purposes of such investigation. 

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

8 after the filing of the complaint, the Secretary 

9 shall— 

10 ‘‘(i) determine whether reasonable 

11 cause exists to believe that a violation of 

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

13 ‘‘(ii) issue a decision granting or deny14 ing relief. 

15 ‘‘(6) PRELIMINARY ORDER FOLLOWING INVES16 TIGATION.—If, after completion of an investigation 

17 under paragraph (5)(A), the Secretary finds reason18 able cause to believe that a violation of paragraph (1) 

19 or (2) has occurred, the Secretary shall issue a pre20 liminary order providing relief authorized under 

21 paragraph (14) at the same time the Secretary issues 

22 a decision under paragraph (5)(B). If a de novo hear23 ing is not requested within the time period required 

24 under paragraph (7)(A)(i), such preliminary order 


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1 shall be deemed a final order of the Secretary and is 

2 not subject to judicial review. 

3 ‘‘(7) HEARING.— 

4 ‘‘(A) REQUEST FOR HEARING.— 

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

6 on the record before an administrative law 

7 judge may be requested— 

8 ‘‘(I) by the complainant or re9 spondent within 30 days after receiv10 ing notification of a decision granting 

11 or denying relief issued under para12 graph (5)(B) or paragraph (6) respec13 tively; 

14 ‘‘(II) by the complainant within 

15 30 days after the date the complaint is 

16 dismissed without investigation by the 

17 Secretary under paragraph (5)(A); or 

18 ‘‘(III) by the complainant within 

19 120 days after the date of filing the 

20 complaint, if the Secretary has not 

21 issued a decision under paragraph 

22 (5)(B). 

23 ‘‘(ii) REINSTATEMENT ORDER.—The 

24 request for a hearing shall not operate to 


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1 stay any preliminary reinstatement order 

2 issued under paragraph (6). 

3 ‘‘(B) PROCEDURES.— 

4 ‘‘(i) IN GENERAL.—A hearing re5 quested under this paragraph shall be con6 ducted expeditiously and in accordance 

7 with rules established by the Secretary for 

8 hearings conducted by administrative law 

9 judges. 

10 ‘‘(ii) SUBPOENAS; PRODUCTION OF EVI11 DENCE.—In conducting any such hearing, 

12 the administrative law judge may issue sub13 poenas. The respondent or complainant 

14 may request the issuance of subpoenas that 

15 require the deposition of, or the attendance 

16 and testimony of, witnesses and the produc17 tion of any evidence (including any books, 

18 papers, documents, or recordings) relating 

19 to the matter under consideration. 

20 ‘‘(iii) DECISION.—The administrative 

21 law judge shall issue a decision not later 

22 than 90 days after the date on which a 

23 hearing was requested under this paragraph 

24 and promptly notify, in writing, the parties 

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1 ing the findings of fact and conclusions of 

2 law. If the administrative law judge finds 

3 that a violation of paragraph (1) or (2) has 

4 occurred, the judge shall issue an order for 

5 relief under paragraph (14). If review 

6 under paragraph (8) is not timely re7 quested, such order shall be deemed a final 

8 order of the Secretary that is not subject to 

9 judicial review. 

10 ‘‘(8) ADMINISTRATIVE APPEAL.— 

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

12 after the date of notification of a decision and 

13 order issued by an administrative law judge 

14 under paragraph (7), the complainant or re15 spondent may file, with objections, an adminis16 trative appeal with an administrative review 

17 body designated by the Secretary (referred to in 

18 this paragraph as the ‘review board’). 

19 ‘‘(B) STANDARD OF REVIEW.—In reviewing 

20 the decision and order of the administrative law 

21 judge, the review board shall affirm the decision 

22 and order if it is determined that the factual 

23 findings set forth therein are supported by sub24 stantial evidence and the decision and order are 

25 made in accordance with applicable law. 


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

2 grants an administrative appeal, the review 

3 board shall issue a final decision and order af4 firming or reversing, in whole or in part, the de5 cision under review by not later than 90 days 

6 after receipt of the administrative appeal. If it 

7 is determined that a violation of paragraph (1) 

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

9 a final decision and order providing relief au10 thorized under paragraph (14). Such decision 

11 and order shall constitute final agency action 

12 with respect to the matter appealed. 

13 ‘‘(9) SETTLEMENT IN THE ADMINISTRATIVE

14 PROCESS.— 

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

16 issuance of a final order, an investigation or 

17 proceeding under this subsection may be termi18 nated on the basis of a settlement agreement en19 tered into by the parties. 

20 ‘‘(B) PUBLIC POLICY CONSIDERATIONS.— 

21 Neither the Secretary, an administrative law 

22 judge, nor the review board conducting a hearing 

23 under this subsection shall accept a settlement 

24 that contains conditions conflicting with the 

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1 trary to public policy, including a restriction on 

2 a complainant’s right to future employment with 

3 employers other than the specific employers 

4 named in a complaint. 

5 ‘‘(10) INACTION BY THE REVIEW BOARD OR AD6 MINISTRATIVE LAW JUDGE.— 

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

8 bring a de novo action described in subpara9 graph (B) if— 

10 ‘‘(i) an administrative law judge has 

11 not issued a decision and order within the 

12 90-day time period required under para13 graph (7)(B)(iii); or 

14 ‘‘(ii) the review board has not issued a 

15 decision and order within the 90-day time 

16 period required under paragraph (8)(C). 

17 ‘‘(B) DE NOVO ACTION.—Such de novo ac18 tion may be brought at law or equity in the 

19 United States district court for the district where 

20 a violation of paragraph (1) or (2) allegedly oc21 curred or where the complainant resided on the 

22 date of such alleged violation. The court shall 

23 have jurisdiction over such action without regard 

24 to the amount in controversy and to order ap25 propriate relief under paragraph (14). Such acVerDate Mar 15 2010 21:34 Jul 29, 2010 Jkt 089200 PO 00000 Frm 00089 Fmt 6652 Sfmt 6203 E:\BILLS\H5663.RH H5663

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1 tion shall, at the request of either party to such 

2 action, be tried by the court with a jury. 

3 ‘‘(11) JUDICIAL REVIEW.— 

4 ‘‘(A) TIMELY APPEAL TO THE COURT OF AP5 PEALS.—Any party adversely affected or ag6 grieved by a final decision and order issued 

7 under this subsection may obtain review of such 

8 decision and order in the United States Court of 

9 Appeals for the circuit where the violation, with 

10 respect to which such final decision and order 

11 was issued, allegedly occurred or where the com12 plainant resided on the date of such alleged vio13 lation. To obtain such review, a party shall file 

14 a petition for review not later than 60 days after 

15 the final decision and order was issued. Such re16 view shall conform to chapter 7 of title 5, United 

17 States Code. The commencement of proceedings 

18 under this subparagraph shall not, unless or19 dered by the court, operate as a stay of the final 

20 decision and order. 

21 ‘‘(B) LIMITATION ON COLLATERAL AT22 TACK.—An order and decision with respect to 

23 which review may be obtained under subpara24 graph (A) shall not be subject to judicial review 

25 in any criminal or other civil proceeding. 


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1 ‘‘(12) ENFORCEMENT OF ORDER.—If a respond2 ent fails to comply with an order issued under this 

3 subsection, the Secretary or the complainant on whose 

4 behalf the order was issued may file a civil action for 

5 enforcement in the United States district court for the 

6 district in which the violation was found to occur to 

7 enforce such order. If both the Secretary and the com8 plainant file such action, the action of the Secretary 

9 shall take precedence. The district court shall have ju10 risdiction to grant all appropriate relief described in 

11 paragraph (14). 

12 ‘‘(13) BURDENS OF PROOF.— 

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

14 making a determination or adjudicating a com15 plaint pursuant to this subsection, the Secretary, 

16 administrative law judge, review board, or a 

17 court may determine that a violation of para18 graph (1) or (2) has occurred only if the com19 plainant demonstrates that any conduct de20 scribed in paragraph (1) or (2) with respect to 

21 the complainant was a contributing factor in the 

22 adverse action alleged in the complaint. 

23 ‘‘(B) PROHIBITION.—Notwithstanding sub24 paragraph (A), a decision or order that is favor25 able to the complainant shall not be issued in 


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1 any administrative or judicial action pursuant 

2 to this subsection if the respondent demonstrates 

3 by clear and convincing evidence that the re4 spondent would have taken the same adverse ac5 tion in the absence of such conduct. 

6 ‘‘(14) RELIEF.— 

7 ‘‘(A) ORDER FOR RELIEF.—If the Secretary, 

8 administrative law judge, review board, or a 

9 court determines that a violation of paragraph 

10 (1) or (2) has occurred, the Secretary or court, 

11 respectively, shall have jurisdiction to order all 

12 appropriate relief, including injunctive relief, 

13 compensatory and exemplary damages, includ14 ing— 

15 ‘‘(i) affirmative action to abate the vio16 lation; 

17 ‘‘(ii) reinstatement without loss of po18 sition or seniority, and restoration of the 

19 terms, rights, conditions, and privileges as20 sociated with the complainant’s employ21 ment, including opportunities for pro22 motions to positions with equivalent or bet23 ter compensation for which the complainant 

24 is qualified; 


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1 ‘‘(iii) compensatory and consequential 

2 damages sufficient to make the complainant 

3 whole, (including back pay, prejudgment in4 terest, and other damages); and 

5 ‘‘(iv) expungement of all warnings, 

6 reprimands, or derogatory references that 

7 have been placed in paper or electronic 

8 records or databases of any type relating to 

9 the actions by the complainant that gave 

10 rise to the unfavorable personnel action, 

11 and, at the complainant’s direction, trans12 mission of a copy of the decision on the 

13 complaint to any person whom the com14 plainant reasonably believes may have re15 ceived such unfavorable information. 

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

17 Secretary or an administrative law judge, review 

18 board, or court grants an order for relief under 

19 subparagraph (A), the Secretary, administrative 

20 law judge, review board, or court, respectively, 

21 shall assess, at the request of the employee 

22 against the employer— 

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

24 ‘‘(ii) costs (including expert witness 

25 fees) reasonably incurred, as determined by 


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1 the Secretary, administrative law judge, re2 view board, or court, respectively, in con3 nection with bringing the complaint upon 

4 which the order was issued. 

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

6 remedies provided for in this subsection may not be 

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

8 of employment, including by any pre-dispute arbitra9 tion agreement or collective bargaining agreement. 

10 ‘‘(16) SAVINGS.—Nothing in this subsection shall 

11 be construed to diminish the rights, privileges, or 

12 remedies of any employee who exercises rights under 

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

14 any collective bargaining agreement. 

15 ‘‘(17) ELECTION OF VENUE.— 

16 ‘‘(A) IN GENERAL.—An employee of an em17 ployer who is located in a State that has a State 

18 plan approved under section 18 may file a com19 plaint alleging a violation of paragraph (1) or 

20 (2) by such employer with— 

21 ‘‘(i) the Secretary under paragraph 

22 (5); or 

23 ‘‘(ii) a State plan administrator in 

24 such State. 

25 ‘‘(B) REFERRALS.—If— 


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1 ‘‘(i) the Secretary receives a complaint 

2 pursuant to subparagraph (A)(i), the Sec3 retary shall not refer such complaint to a 

4 State plan administrator for resolution; or 

5 ‘‘(ii) a State plan administrator re6 ceives a complaint pursuant to subpara7 graph (A)(ii), the State plan administrator 

8 shall not refer such complaint to the Sec9 retary for resolution.’’. 

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

11 such Act (29 U.S.C. 666(j)) is amended by inserting before 

12 the period the following: ‘‘, including the history of viola13 tions under section 11(c)’’. 

14 SEC. 702. VICTIMS’ RIGHTS. 

15 The Occupational Safety and Health Act of 1970 is 

16 amended by inserting after section 9 (29 U.S.C. 658) the 

17 following: 

18 ‘‘SEC. 9A. VICTIMS’ RIGHTS. 

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

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

21 with respect to an inspection or investigation conducted 

22 under section 8 to— 

23 ‘‘(1) meet with the Secretary regarding the in24 spection or investigation conducted under such section 


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1 before the Secretary’s decision to issue a citation or 

2 take no action; 

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

4 or report, issued as a result of such inspection or in5 vestigation, at the same time as the employer receives 

6 such citation or report; 

7 ‘‘(3) be informed of any notice of contest or addi8 tion of parties to the proceedings filed under section 

9 10(c); and 

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

11 time or any proceedings, service of pleadings, and 

12 other relevant documents, and an explanation of the 

13 rights of the employer, employee and employee rep14 resentative, and victim to participate in proceedings 

15 conducted under section 10(c). 

16 ‘‘(b) RIGHTS BEFORE THE COMMISSION.—Upon re17 quest, a victim or representative of a victim shall be af18 forded the right with respect to a work-related bodily injury 

19 or death to— 

20 ‘‘(1) be notified of the time and date of any pro21 ceeding before the Commission; 

22 ‘‘(2) receive pleadings and any decisions relating 

23 to the proceedings; and 


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

2 make a statement in accordance with the rules pre3 scribed by the Commission. 

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

5 into an agreement to withdraw or modify a citation issued 

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

7 under section 8, the Secretary shall notify a victim or rep8 resentative of a victim and provide the victim or representa9 tive of a victim with an opportunity to appear and make 

10 a statement before the parties conducting settlement nego11 tiations. In lieu of an appearance, the victim or representa12 tive of the victim may elect to submit a letter to the Sec13 retary and the parties. 

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

15 establish procedures— 

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

17 section; and 

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

19 denial of such a right. 

20 ‘‘(e) COMMISSION PROCEDURES AND CONSIDER21 ATIONS.—The Commission shall— 

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

23 victims to be heard in proceedings before the Commis24 sion; and 


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1 ‘‘(2) in rendering any decision, provide due con2 sideration to any statement or information provided 

3 by any victim before the Commission. 

4 ‘‘(f) FAMILY LIAISONS.—The Secretary shall designate 

5 at least 1 employee at each area office of the Occupational 

6 Safety and Health Administration to serve as a family liai7 son to— 

8 ‘‘(1) keep victims informed of the status of inves9 tigations, enforcement actions, and settlement negotia10 tions; and 

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

12 under this section. 

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

14 means— 

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

16 who has sustained a work-related injury or illness 

17 that is the subject of an inspection or investigation 

18 conducted under section 8; or 

19 ‘‘(2) a family member (as further defined by the 

20 Secretary) of a victim described in paragraph (1), 

21 if— 

22 ‘‘(A) the victim dies as a result of a inci23 dent that is the subject of an inspection or inves24 tigation conducted under section 8; or 


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1 ‘‘(B) the victim sustains a work-related in2 jury or illness that is the subject of an inspection 

3 or investigation conducted under section 8, and 

4 the victim because of incapacity cannot reason5 ably exercise the rights under this section.’’. 

6 SEC. 703. CORRECTION OF SERIOUS, WILLFUL, OR RE7 PEATED VIOLATIONS PENDING CONTEST AND 

8 PROCEDURES FOR A STAY. 

9 Section 10 of the Occupational Safety and Health Act 

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

11 the following: 

12 ‘‘(d) CORRECTION OF SERIOUS, WILLFUL, OR RE13 PEATED VIOLATIONS PENDING CONTEST AND PROCEDURES

14 FOR A STAY.— 

15 ‘‘(1) PERIOD PERMITTED FOR CORRECTION OF

16 SERIOUS, WILLFUL, OR REPEATED VIOLATIONS.—For 

17 each violation which the Secretary designates as seri18 ous, willful, or repeated, the period permitted for the 

19 correction of the violation shall begin to run upon re20 ceipt of the citation. 

21 ‘‘(2) FILING OF A MOTION OF CONTEST.—The fil22 ing of a notice of contest by an employer— 

23 ‘‘(A) shall not operate as a stay of the pe24 riod for correction of a violation designated as 

25 serious, willful, or repeated; and 


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

2 correction of a violation not designated by the 

3 Secretary as serious, willful, or repeated. 

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

5 STAYS.— 

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

7 that receives a citation alleging a violation des8 ignated as serious, willful, or repeated and that 

9 files a notice of contest to the citation asserting 

10 that the time set for abatement of the alleged vio11 lation is unreasonable or challenging the exist12 ence of the alleged violation may file with the 

13 Commission a motion to stay the period for the 

14 abatement of the violation. 

15 ‘‘(B) CRITERIA.—In determining whether a 

16 stay should be issued on the basis of a motion 

17 filed under subparagraph (A), the Commission 

18 may grant a stay only if the employer has dem19 onstrated— 

20 ‘‘(i) a substantial likelihood of success 

21 on the areas contested under subparagraph 

22 (A); and 

23 ‘‘(ii) that a stay will not adversely af24 fect the health and safety of workers. 


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1 ‘‘(C) RULES OF PROCEDURE.—The Com2 mission shall develop rules of procedure for con3 ducting a hearing on a motion filed under sub4 paragraph (A) on an expedited basis. At a min5 imum, such rules shall provide: 

6 ‘‘(i) That a hearing before an adminis7 trative law judge shall occur not later than 

8 15 days following the filing of the motion 

9 for a stay (unless extended at the request of 

10 the employer), and shall provide for a deci11 sion on the motion not later than 15 days 

12 following the hearing (unless extended at the 

13 request of the employer). 

14 ‘‘(ii) That a decision of an administra15 tive law judge on a motion for stay is ren16 dered on a timely basis. 

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

18 a decision issued by an administrative law 

19 judge regarding the stay, such party has the 

20 right to file an objection with the Commis21 sion not later than 5 days after receipt of 

22 the administrative law judge’s decision. 

23 Within 10 days after receipt of the objec24 tion, a Commissioner, if a quorum is seated 

25 pursuant to section 12(f), shall decide 


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1 whether to grant review of the objection. If, 

2 within 10 days after receipt of the objection, 

3 no decision is made on whether to review 

4 the decision of the administrative law judge, 

5 the Commission declines to review such de6 cision, or no quorum is seated, the decision 

7 of the administrative law judge shall become 

8 a final order of the Commission. If the 

9 Commission grants review of the objection, 

10 the Commission shall issue a decision re11 garding the stay not later than 30 days 

12 after receipt of the objection. If the Commis13 sion fails to issue such decision within 30 

14 days, the decision of the administrative law 

15 judge shall become a final order of the Com16 mission. 

17 ‘‘(iv) For notification to employees or 

18 representatives of affected employees of re19 quests for such hearings and shall provide 

20 affected employees or representatives of af21 fected employees an opportunity to partici22 pate as parties to such hearings.’’. 


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1 SEC. 704. CONFORMING AMENDMENTS. 

2 Section 17(d) of the Occupational Safety and Health 

3 Act of 1970 (29 U.S.C. 666(d)) is amended to read as fol4 lows: 

5 ‘‘(d) Any employer who fails to correct a violation des6 ignated by the Secretary as serious, willful, or repeated and 

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

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

9 has not been issued by the Commission under section 10(d)) 

10 may be assessed a civil penalty of not more than $7,000 

11 for each day during which such failure or violation con12 tinues. Any employer who fails to correct any other viola13 tion for which a citation has been issued under section 9(a) 

14 of this title within the period permitted for its correction 

15 (which period shall not begin to run until the date of the 

16 final order of the Commission in the case of any review 

17 proceeding under section 10 initiated by the employer in 

18 good faith and not solely for delay of avoidance of penalties) 

19 may be assessed a civil penalty of not more than $7,000 

20 for each day during which such failure or violation con21 tinues.’’. 

22 SEC. 705. CIVIL PENALTIES. 

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

24 Safety and Health Act of 1970 (29 U.S.C. 666) is amend25 ed— 

26 (1) in subsection (a)— 


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

2 ‘‘$120,000’’; 

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

4 ‘‘$8,000’’; and 

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

6 determining whether a violation is repeated, the 

7 Secretary or the Commission shall consider the 

8 employer’s history of violations under this Act 

9 and under State occupational safety and health 

10 plans established under section 18. If such a 

11 willful or repeated violation caused or contrib12 uted to the death of an employee, such civil pen13 alty amounts shall be increased to not more than 

14 $250,000 for each such violation, but not less 

15 than $50,000 for each such violation, except that 

16 for an employer with 25 or fewer employees such 

17 penalty shall not be less than $25,000 for each 

18 such violation.’’; 

19 (2) in subsection (b)— 

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

21 ‘‘$12,000’’; and 

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

23 such a violation caused or contributed to the 

24 death of an employee, such civil penalty amounts 

25 shall be increased to not more than $50,000 for 


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1 each such violation, but not less than $20,000 for 

2 each such violation, except that for an employer 

3 with 25 or fewer employees such penalty shall 

4 not be less than $10,000 for each such viola5 tion.’’; 

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

7 inserting ‘‘$12,000’’; 

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

9 ‘‘$7,000’’ each place it occurs and inserting 

10 ‘‘$12,000’’; 

11 (5) by redesignating subsections (e) through (i) 

12 as subsections (f) through (j), and subsections (j) 

13 through (l) as subsections (l) through (n) respectively; 

14 and 

15 (6) in subsection (j) (as so redesignated) by 

16 striking ‘‘$7,000’’ and inserting ‘‘$12,000’’. 

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

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

19 ‘‘(e) Amounts provided under this section for civil pen20 alties shall be adjusted by the Secretary at least once during 

21 each 4-year period beginning January 1, 2015, to account 

22 for the percentage increase or decrease in the Consumer 

23 Price Index for all urban consumers during such period.’’. 


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1 SEC. 706. CRIMINAL PENALTIES. 

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

3 Safety and Health Act of 1970 (29 U.S.C. 666) (as amended 

4 by section 705) is further amended— 

5 (1) by amending subsection (f) (as redesignated 

6 by section 705) to read as follows: 

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

8 standard, rule, or order promulgated under section 6 of this 

9 Act, or of any regulation prescribed under this Act, and 

10 that violation caused or significantly contributed to the 

11 death of any employee, shall, upon conviction, be punished 

12 by a fine in accordance with title 18, United States Code, 

13 or by imprisonment for not more than 10 years, or both, 

14 except that if the conviction is for a violation committed 

15 after a first conviction of such person under this subsection 

16 or subsection (i), punishment shall be by a fine in accord17 ance title 18, United States Code, or by imprisonment for 

18 not more than 20 years, or by both. 

19 ‘‘(2) For the purpose of this subsection, the term ‘em20 ployer’ means, in addition to the definition contained in 

21 section 3 of this Act, any officer or director.’’; 

22 (2) by amending subsection (g) (as redesignated 

23 by section 705) to read as follows: 

24 ‘‘(g) Unless otherwise authorized by this Act, any per25 son that knowingly gives, causes to give, or attempts to give 

26 or cause to give, advance notice of any inspection conducted 


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1 under this Act with the intention of impeding, interfering 

2 with, or adversely affecting the results of such inspection, 

3 shall be fined under title 18, United States Code, impris4 oned for not more than 5 years, or both.’’. 

5 (3) in subsection (h) (as redesignated by section 

6 705), by striking ‘‘fine of not more than $10,000, or 

7 by imprisonment for not more than six months,’’ and 

8 inserting ‘‘fine in accordance with title 18, United 

9 States Code, or by imprisonment for not more than 

10 5 years,’’; 

11 (4) by inserting after subsection (j) (as redesig12 nated by section 705) the following: 

13 ‘‘(k)(1) Any employer who knowingly violates any 

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

15 any regulation prescribed under this Act, and that violation 

16 caused or significantly contributed to serious bodily harm 

17 to any employee but does not cause death to any employee, 

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

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

20 not more than 5 years, or by both, except that if the convic21 tion is for a violation committed after a first conviction 

22 of such person under this subsection or subsection (e), pun23 ishment shall be by a fine in accordance with title 18, 

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

25 10 years, or by both. 


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1 ‘‘(2) For the purpose of this subsection, the term ‘em2 ployer’ means, in addition to the definition contained in 

3 section 3 of this Act, any officer or director. 

4 ‘‘(3) For purposes of this subsection, the term ‘serious 

5 bodily harm’ means bodily injury or illness that involves— 

6 ‘‘(A) a substantial risk of death; 

7 ‘‘(B) protracted unconsciousness; 

8 ‘‘(C) protracted and obvious physical disfigure9 ment; or 

10 ‘‘(D) protracted loss or impairment, either tem11 porary or permanent, of the function of a bodily 

12 member, organ, or mental faculty.’’. 

13 (b) JURISDICTION FOR PROSECUTION UNDER STATE

14 AND LOCAL CRIMINAL LAWS.—Such section is further 

15 amended by adding at the end the following: 

16 ‘‘(o) Nothing in this Act shall preclude a State or local 

17 law enforcement agency from conducting criminal prosecu18 tions in accordance with the laws of such State or locality.’’. 

19 SEC. 707. PRE-FINAL ORDER INTEREST. 

20 Section 17(n) of the Occupational Safety and Health 

21 Act of 1970 (29 U.S.C. 666) (as redesignated by section 

22 706(a)(4)) (29 U.S.C. 666(n)) is amended by adding at the 

23 end the following: ‘‘Pre-final order interest on such pen24 alties shall begin to accrue on the date the party contests 

25 a citation issued under this Act, and shall end upon the 


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

2 shall be calculated at the current underpayment rate deter3 mined by the Secretary of the Treasury pursuant to section 

4 6621 of the Internal Revenue Code of 1986, and shall be 

5 compounded daily. Post-final order interest shall begin to 

6 accrue 30 days after the date a final order of the Commis7 sion or the court is issued, and shall be charged at the rate 

8 of 8 percent per year.’’. 

9 SEC. 708. REVIEW OF STATE OCCUPATIONAL SAFETY AND 

10 HEALTH PLANS. 

11 Section 18 of the Occupational Safety and Health Act 

12 of 1970 (29 U.S.C. 668) is amended— 

13 (1) by amending subsection (f) to read as follows: 

14 ‘‘(f)(1) The Secretary shall, on the basis of reports sub15 mitted by the State agency and the Secretary’s own inspec16 tions, make a continuing evaluation of the manner in which 

17 each State that has a plan approved under this section is 

18 carrying out such plan. Such evaluation shall include an 

19 assessment of whether the State continues to meet the re20 quirements of subsection (c) of this section and any other 

21 criteria or indices of effectiveness specified by the Secretary 

22 in regulations. Whenever the Secretary finds, on the basis 

23 of such evaluation, that in the administration of the State 

24 plan there is a failure to comply substantially with any 

25 provision of the State plan (or any assurance contained 


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1 therein), the Secretary shall make an initial determination 

2 of whether the failure is of such a nature that the plan 

3 should be withdrawn or whether the failure is of such a 

4 nature that the State should be given the opportunity to 

5 remedy the deficiencies, and provide notice of the Sec6 retary’s findings and initial determination. 

7 ‘‘(2) If the Secretary makes an initial determination 

8 to reassert and exercise concurrent enforcement authority 

9 while the State is given an opportunity to remedy the defi10 ciencies, the Secretary shall afford the State an opportunity 

11 for a public hearing within 15 days of such request, pro12 vided that such request is made not later than 10 days after 

13 Secretary’s notice to the State. The Secretary shall review 

14 and consider the testimony, evidence, or written comments, 

15 and not later than 30 days following such hearing, make 

16 a determination to affirm, reverse, or modify the Secretary’s 

17 initial determination to reassert and exercise concurrent en18 forcement authority under sections 8, 9, 10, 13, and 17 with 

19 respect to standards promulgated under section 6 and obli20 gations under section 5(a). Following such a determination 

21 by the Secretary, or in the event that the State does not 

22 request a hearing within the time frame set forth in this 

23 paragraph, the Secretary may reassert and exercise such 

24 concurrent enforcement authority, while a final determina25 tion is pending under paragraph (3) or until the Secretary 


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1 has determined that the State has remedied the deficiencies 

2 as provided under paragraph (4). Such determination shall 

3 be published in the Federal Register. The procedures set 

4 forth in section 18(g) shall not apply to a determination 

5 by the Secretary to reassert and exercise such concurrent 

6 enforcement authority. 

7 ‘‘(3) If the Secretary makes an initial determination 

8 that the plan should be withdrawn, the Secretary shall pro9 vide due notice and the opportunity for a hearing. If based 

10 on the evaluation, comments, and evidence, the Secretary 

11 makes a final determination that there is a failure to com12 ply substantially with any provision of the State plan (or 

13 any assurance contained therein), he shall notify the State 

14 agency of the withdrawal of approval of such plan and 

15 upon receipt of such notice such plan shall cease to be in 

16 effect, but the State may retain jurisdiction in any case 

17 commenced before the withdrawal of the plan in order to 

18 enforce standards under the plan whenever the issues in19 volved do not relate to the reasons for the withdrawal of 

20 the plan. 

21 ‘‘(4) If the Secretary makes a determination that the 

22 State should be provided the opportunity to remedy the defi23 ciencies, the Secretary shall provide the State an oppor24 tunity to respond to the Secretary’s findings and the oppor25 tunity to remedy such deficiencies within a time period esVerDate Mar 15 2010 21:34 Jul 29, 2010 Jkt 089200 PO 00000 Frm 00111 Fmt 6652 Sfmt 6203 E:\BILLS\H5663.RH H5663

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1 tablished by the Secretary, not to exceed 1 year. The Sec2 retary may extend and revise the time period to remedy 

3 such deficiencies, if the State’s legislature is not in session 

4 during this 1 year time period, or if the State demonstrates 

5 that it is not feasible to correct the deficiencies in the time 

6 period set by the Secretary, and the State has a plan to 

7 correct the deficiencies within a reasonable time period. If 

8 the Secretary finds that the State agency has failed to rem9 edy such deficiencies within the time period specified by 

10 the Secretary and that the State plan continues to fail to 

11 comply substantially with a provision of the State plan, 

12 the Secretary shall withdraw the State plan as provided 

13 for in paragraph (3).’’; and 

14 (2) by adding at the end the following new sub15 section: 

16 ‘‘(i) Not later than 18 months after the date of enact17 ment of this subsection, and every 5 years thereafter, the 

18 Comptroller General shall complete and issue a review of 

19 the effectiveness of State plans to develop and enforce safety 

20 and health standards to determine if they are at least as 

21 effective as the Federal program and to evaluate whether 

22 the Secretary’s oversight of State plans is effective. The 

23 Comptroller General’s evaluation shall assess— 


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1 ‘‘(1) the effectiveness of the Secretary’s oversight 

2 of State plans, including the indices of effectiveness 

3 used by the Secretary; 

4 ‘‘(2) whether the Secretary’s investigations in re5 sponse to Complaints About State Plan Administra6 tion (CASPA) are adequate, whether significant pol7 icy issues have been identified by headquarters and 

8 corrective actions are fully implemented by each 

9 State; 

10 ‘‘(3) whether the formula for the distribution of 

11 funds described in section 23(g) to State programs is 

12 fair and adequate; and 

13 ‘‘(4) whether State plans are as effective as the 

14 Federal program in preventing occupational injuries, 

15 illnesses and deaths, and investigating discrimination 

16 complaints, through an evaluation of at least 20 per17 cent of approved State plans, and which shall cover— 

18 ‘‘(A) enforcement effectiveness, including 

19 handling of fatalities, serious incidents and com20 plaints, compliance with inspection procedures, 

21 hazard recognition, verification of abatement, 

22 violation classification, citation and penalty 

23 issuance, including appropriate use of willful 

24 and repeat citations, and employee involvement; 


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1 ‘‘(B) inspections, the number of pro2 grammed health and safety inspections at pri3 vate and public sector establishments, and wheth4 er the State targets the highest hazard private 

5 sector work sites and facilities in that State; 

6 ‘‘(C) budget and staffing, including whether 

7 the State is providing adequate budget resources 

8 to hire, train and retain sufficient numbers of 

9 qualified staff, including timely filling of vacan10 cies; 

11 ‘‘(D) administrative review, including the 

12 quality of decisions, consistency with Federal 

13 precedence, transparency of proceedings, deci14 sions and records are available to the public, 

15 adequacy of State defense, and whether the State 

16 appropriately appeals adverse decisions; 

17 ‘‘(E) anti discrimination, including wheth18 er discrimination complaints are processed in a 

19 timely manner, whether supervisors and inves20 tigators are properly trained to investigate dis21 crimination complaints, whether a case file re22 view indicates merit cases are properly identified 

23 consistent with Federal policy and procedure, 

24 whether employees are notified of their rights, 


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1 and whether there is an effective process for em2 ployees to appeal the dismissal of a complaint; 

3 ‘‘(F) program administration, including 

4 whether the State’s standards and policies are at 

5 least as effective as the Federal program and are 

6 updated in a timely manner, and whether Na7 tional Emphasis Programs that are applicable 

8 in such States are adopted and implemented in 

9 a manner that is at least as effective as the Fed10 eral program; 

11 ‘‘(G) whether the State plan satisfies the re12 quirements for approval set forth in this section 

13 and its implementing regulations; and 

14 ‘‘(H) other such factors identified by the 

15 Comptroller General, or as requested by the Com16 mittee on Education and Labor of the House of 

17 Representatives or the Committee on Health, 

18 Education, Labor and Pensions of the Senate.’’. 

19 SEC. 709. HEALTH HAZARD EVALUATIONS BY THE NA20 TIONAL INSTITUTE FOR OCCUPATIONAL 

21 SAFETY AND HEALTH. 

22 Section 20(a)(6) of the Occupational Safety and 

23 Health Act of 1970 (29 U.S.C. 669(a)(6)) is amended by 

24 striking the second sentence and inserting the following: 

25 ‘‘The Secretary shall determine following a written request 


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1 by any employer, authorized representative of current or 

2 former employees, physician, other Federal agency, or State 

3 or local health department, specifying with reasonable par4 ticularity the grounds on which the request is made, wheth5 er any substance normally found in the place of employ6 ment has potentially toxic effects in such concentrations as 

7 used or found or whether any physical agents, equipment, 

8 or working condition found or used has potentially haz9 ardous effects; and shall submit such determination both to 

10 employers and affected employees as soon as possible.’’. 

11 SEC. 710. AUTHORIZATION OF COOPERATIVE AGREEMENTS 

12 BY NIOSH OFFICE OF MINE SAFETY AND 

13 HEALTH. 

14 Section 22(h)(3) of the Occupational Safety and 

15 Health Act of 1970 (29 U.S.C. 671(h)(3)) is amended— 

16 (1) in subparagraph (B), by striking ‘‘and’’ at 

17 the end; 

18 (2) by redesignating subparagraph (C) as sub19 paragraph (D); and 

20 (3) by inserting after subparagraph (B) the fol21 lowing: 

22 ‘‘(C) enter into cooperative agreements or 

23 contracts with international institutions and 

24 private entities to improve mine safety and 


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1 health through the development and evaluation of 

2 new interventions; and’’. 

3 SEC. 711. EFFECTIVE DATE. 

4 (a) GENERAL RULE.—Except as provided for in sub5 section (b), this title and the amendments made by this title 

6 shall take effect not later than 90 days after the date of 

7 the enactment of this Act. 

8 (b) EXCEPTION FOR STATES AND POLITICAL SUBDIVI9 SIONS.—A State that has a State plan approved under sec10 tion 18 (29 U.S.C. 667) shall amend its State plan to con11 form with the requirements of this Act and the amendments 

12 made by this Act not later than 12 months after the date 

13 of the enactment of this Act. The Secretary of Labor may 

14 extend the period for a State to make such amendments to 

15 its State plan by not more than 12 months, if the State’s 

16 legislature is not in session during the 12-month period be17 ginning with the date of the enactment of this Act. Such 

18 amendments to the State plan shall take effect not later 

19 than 90 days after the adoption of such amendments by 

20 such State. 


emcdonald on DSK2BSOYB1PROD with BILLS
Union Calendar No. 334 

111TH CONGRESS 

2D SESSION H. R. 5663 

[Report No. 111–579, Part I] 

A BILL 

To improve compliance with mine and occupational 

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

JULY 29, 2010 

Reported with an amendment, referred to the Committee 

of that committee pursuant to clause 1(k), rule X the bill and amendment as fall within the jurisdiction July 29, 2010, for consideration of such provisions of on the Judiciary for a period ending not later than 

JULY 29, 2010 

Committee on the Judiciary discharged; committed to the 

Union and ordered to be printed Committee of the Whole House on the State of the 


emcdonald on DSK2BSOYB1PROD with BILLS