I 

111TH CONGRESS 

2D SESSION H. R. 5663 

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 

A BILL 

To improve compliance with mine and occupational safety 

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

accidents, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Miner Safety and Health Act of 2010’’. 


emcdonald on DSK2BSOYB1PROD with BILLS
2 

•HR 5663 IH

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

2 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. References. 

TITLE I—ADDITIONAL INSPECTION AND INVESTIGATION 

AUTHORITY 

Sec. 101. Independent accident investigations. 

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

Sec. 103. Designation of miner representative. 

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

TITLE II—ENHANCED ENFORCEMENT AUTHORITY 

Sec. 201. Significant and substantial violations. 

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

Sec. 203. Injunctive authority. 

Sec. 204. Revocation of approval of plans. 

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

mine plan. 

TITLE III—PENALTIES 

Sec. 301. Civil penalties. 

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

Sec. 303. Criminal penalties. 

Sec. 304. Commission review of penalty assessments. 

Sec. 305. Delinquent payments and prejudgment interest. 

TITLE IV—WORKER RIGHTS AND PROTECTIONS 

Sec. 401. Protection from retaliation. 

Sec. 402. Protection from loss of pay. 

Sec. 403. Underground coal miner employment standard. 

TITLE V—MODERNIZING HEALTH AND SAFETY STANDARDS 

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

Sec. 502. Rock dust standards. 

Sec. 503. Atmospheric monitoring systems. 

Sec. 504. Technology related to respirable dust. 

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

Sec. 506. Authority to mandate additional training. 

Sec. 507. Certification of personnel. 

TITLE VI—ADDITIONAL MINE SAFETY PROVISIONS 

Sec. 601. Definitions. 

Sec. 602. Assistance to States. 

Sec. 603. Black lung medical reports. 

TITLE VII—AMENDMENTS TO THE OCCUPATIONAL SAFETY AND 

HEALTH ACT 


emcdonald on DSK2BSOYB1PROD with BILLS
3 

•HR 5663 IH

Sec. 701. Enhanced protections from retaliation. 

Sec. 702. Victims’ rights. 

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

and procedures for a stay. 

Sec. 704. Conforming amendments. 

Sec. 705. Civil penalties. 

Sec. 706. Criminal penalties. 

Sec. 707. Penalties. 

Sec. 708. Effective date. 

1 SEC. 2. REFERENCES. 

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

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

6 provision of the Federal Mine Safety and Health Act of 

7 1977 (30 U.S.C. 801 et seq.). 

8 TITLE I—ADDITIONAL INSPEC9 TION AND INVESTIGATION 

10 AUTHORITY 

11 SEC. 101. INDEPENDENT ACCIDENT INVESTIGATIONS. 

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

13 813(b)) is amended by striking ‘‘(b) For the purpose’’ and 

14 inserting the following: 

15 ‘‘(b) ACCIDENT INVESTIGATIONS.— 

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

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

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

21 standards, or other requirements, and if such 


emcdonald on DSK2BSOYB1PROD with BILLS
4 

•HR 5663 IH

1 violations are found, issue citations and pen2 alties, and in cases involving possible criminal 

3 actions, refer such matters to the Attorney 

4 General; and 

5 ‘‘(C) make recommendations to avoid any 

6 recurrence. 

7 ‘‘(2) INDEPENDENT ACCIDENT INVESTIGA8 TIONS.— 

9 ‘‘(A) IN GENERAL.—There shall be, in ad10 dition to an accident investigation under para11 graph (1), an independent investigation by an 

12 independent investigation panel (referred to in 

13 this subsection as the ‘Panel’) appointed under 

14 subparagraph (B) for— 

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

16 deaths; or 

17 ‘‘(ii) any accident that is of such se18 verity or scale for potential or actual harm 

19 that, in the opinion of the Secretary of 

20 Health and Human Services, the accident 

21 merits an independent investigation. 

22 ‘‘(B) APPOINTMENT.— 

23 ‘‘(i) IN GENERAL.—As soon as prac24 ticable after an accident described in sub25 paragraph (A), the Secretary of Health 


emcdonald on DSK2BSOYB1PROD with BILLS
5 

•HR 5663 IH

1 and Human Services shall appoint 5 mem2 bers for the Panel required under this 

3 paragraph from among individuals who 

4 have expertise in accident investigations, 

5 mine engineering, or mine safety and 

6 health that is relevant to the particular in7 vestigation. 

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

9 include, and be chaired by, a representative 

10 from the Office of Mine Safety and Health 

11 Research, of the National Institute for Oc12 cupational Safety and Health (referred to 

13 in this subsection as NIOSH). 

14 ‘‘(iii) CONFLICTS OF INTEREST.— 

15 Panel members, and staff and consultants 

16 assisting the Panel with an investigation, 

17 shall be free from conflicts of interest with 

18 regard to the investigation, and be subject 

19 to the same standards of ethical conduct 

20 for persons employed by the Secretary. 

21 ‘‘(iv) COMPOSITION.—The Secretary 

22 of Health and Human Services shall ap23 point as members of the Panel— 


emcdonald on DSK2BSOYB1PROD with BILLS
6 

•HR 5663 IH

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

3 and 

4 ‘‘(II) 1 representative of a labor 

5 organization that represents miners, 

6 and may not appoint more than 1 of either 

7 such individuals as members of the Panel. 

8 ‘‘(v) STAFF AND EXPENSES.—The Di9 rector of NIOSH shall designate NIOSH 

10 staff to facilitate the work of the Panel. 

11 The Director may accept as staff personnel 

12 on detail from other Federal agencies or 

13 re-employ annuitants. The detail of per14 sonnel under this paragraph may be on a 

15 non-reimbursable basis, and such detail 

16 shall be without interruption or loss of civil 

17 service status or privilege. The Director of 

18 NIOSH shall have the authority to procure 

19 on behalf of the Panel such materials, sup20 plies or services, including technical ex21 perts, as requested in writing by a majority 

22 of the Panel. 

23 ‘‘(vi) COMPENSATION AND TRAVEL.— 

24 All members of the Panel who are officers 

25 or employees of the United States shall 


emcdonald on DSK2BSOYB1PROD with BILLS
7 

•HR 5663 IH

1 serve without compensation in addition to 

2 that received for their services as officers 

3 or employees of the United States. Each 

4 Panel member who is not an officer or em5 ployee of the United States shall be com6 pensated at a rate equal to the daily equiv7 alent of the annual rate of basic pay pre8 scribed for level IV of the Executive Sched9 ule under section 5315 of title 5, United 

10 States Code, for each day (including travel 

11 time) during which such member is en12 gaged in the performance of duties of the 

13 Panel. The members of the Panel shall be 

14 allowed travel expenses, including per diem 

15 in lieu of subsistence, at rates authorized 

16 for employees of agencies under subchapter 

17 1 of chapter 57 of title 5, United States 

18 Code, while away from their homes or reg19 ular places of business in the performance 

20 of services for the Panel. 

21 ‘‘(C) DUTIES.—The Panel shall— 

22 ‘‘(i) assess and identify any factors 

23 that caused the accident, including defi24 ciencies in safety management systems, 

25 regulations, enforcement, industry pracVerDate Mar 15 2010 22:20 Jul 02, 2010 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H5663.IH H5663

emcdonald on DSK2BSOYB1PROD with BILLS
8 

•HR 5663 IH

1 tices or guidelines, or organizational fail2 ures; 

3 ‘‘(ii) identify and evaluate any con4 tributing actions or inactions of— 

5 ‘‘(I) the operator; 

6 ‘‘(II) any contractors or other 

7 persons engaged in mining-related 

8 functions at the site; 

9 ‘‘(III) any State agency with 

10 oversight responsibilities; 

11 ‘‘(IV) any agency or office within 

12 the Department of Labor; or 

13 ‘‘(V) any other person or entity 

14 (including equipment manufacturers); 

15 ‘‘(iii) review the determinations and 

16 recommendations by the Secretary under 

17 paragraph (1); 

18 ‘‘(iv) prepare a report that— 

19 ‘‘(I) includes the findings regard20 ing the causal factors described in 

21 clauses (i) and (ii); 

22 ‘‘(II) identifies any strengths and 

23 weaknesses in the Secretary’s inves24 tigation; and 


emcdonald on DSK2BSOYB1PROD with BILLS
9 

•HR 5663 IH

1 ‘‘(III) includes recommendations, 

2 including interim recommendations 

3 where appropriate, to industry, labor 

4 organizations, State and Federal 

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

8 judgment of the Panel, would prevent 

9 a recurrence at other mines; and 

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

12 which the Attorney General requests that 

13 the Secretary withhold in relation to a 

14 criminal referral) and hold public meetings 

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

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

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

23 Panel shall be subject to the requirements 

24 under section 552b of title 5, United States 

25 Code. 


emcdonald on DSK2BSOYB1PROD with BILLS
10 

•HR 5663 IH

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

3 date of enactment of the Miner Safety and 

4 Health Act of 2010, the Secretary of Labor and 

5 the Secretary of Health and Human Services 

6 shall conclude and publically issue a memo7 randum of understanding that— 

8 ‘‘(i) outlines administrative arrange9 ments which will facilitate a coordination 

10 of efforts between the Secretary of Labor 

11 and the Panel, ensures that the Secretary’s 

12 investigation under paragraph (1) is not 

13 delayed or otherwise compromised by the 

14 activities of the Panel, and establishes a 

15 process to resolve any conflicts between 

16 such investigations; 

17 ‘‘(ii) ensures that Panel members or 

18 staff will be able to participate in inves19 tigation activities (such as mine inspections 

20 and interviews) related to the Secretary of 

21 Labor’s investigation and will have full ac22 cess to documents that are assembled or 

23 produced in such investigation, and en24 sures that the Secretary of Labor will 

25 make all of the authority available to such 


emcdonald on DSK2BSOYB1PROD with BILLS
11 

•HR 5663 IH

1 Secretary under this section, including sub2 poena authority, to obtain information and 

3 witnesses which may be requested by such 

4 Panel; and 

5 ‘‘(iii) establishes such other arrange6 ments as are necessary to implement this 

7 paragraph. 

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

9 days after the date of enactment of the Miner 

10 Safety and Health Act of 2010, the Secretary 

11 of Health and Human Services shall establish 

12 procedures to ensure the consistency and effec13 tiveness of Panel investigations. In establishing 

14 such procedures, such Secretary shall consult 

15 with independent safety investigation agencies, 

16 sectors of the mining industry, representatives 

17 of miners, families of miners involved in fatal 

18 accidents, State mine safety agencies, and mine 

19 rescue organizations. Such procedures shall in20 clude— 

21 ‘‘(i) authority for the Panel to use evi22 dence, samples, interviews, data, analyses, 

23 findings, or other information gathered by 

24 the Secretary of Labor, as the Panel deter25 mines valid; 


emcdonald on DSK2BSOYB1PROD with BILLS
12 

•HR 5663 IH

1 ‘‘(ii) provisions to ensure confiden2 tiality if requested by any witness, to the 

3 extent permitted by law, and prevent con4 flicts of interest in witness representation; 

5 and 

6 ‘‘(iii) provisions for preservation of 

7 public access to the Panel’s records 

8 through the Secretary of Health and 

9 Human Services. 

10 ‘‘(G) AUTHORIZATION OF APPROPRIA11 TIONS.—There is authorized to be appropriated 

12 to carry out this subsection such sums as may 

13 be necessary. 

14 ‘‘(3) POWERS AND PROCESSES.—For the pur15 pose’’. 

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

17 (30 U.S.C. 958(a)) is amended by inserting after ‘‘501,’’ 

18 the following: ‘‘the status of implementation of rec19 ommendations from each independent investigation panel 

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

21 SEC. 102. SUBPOENA AUTHORITY AND MINER RIGHTS DUR22 ING INSPECTIONS AND INVESTIGATIONS. 

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

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

25 the following: 


emcdonald on DSK2BSOYB1PROD with BILLS
13 

•HR 5663 IH

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

2 of enabling the Secretary to perform any of the 

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

5 the attendance and testimony of witnesses and the 

6 production of information, including all relevant 

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

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

14 authorized to question any individual privately. 

15 Under this section, any individual who is willing to 

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

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

20 agents or attorneys. The Secretary shall keep the 

21 identity of an individual providing such a statement 

22 confidential to the extent permitted by law. Nothing 

23 in this paragraph prevents any individual from being 

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


emcdonald on DSK2BSOYB1PROD with BILLS
14 

•HR 5663 IH

1 SEC. 103. DESIGNATION OF MINER REPRESENTATIVE. 

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

4 miner is entrapped or otherwise prevented as the result 

5 of an accident in such mine from designating such a rep6 resentative directly, such miner’s closest relative may act 

7 on behalf of such miner in designating such a representa8 tive. If any miner is not currently working in such mine 

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

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

11 miner may designate such a representative.’’. 

12 SEC. 104. ADDITIONAL AMENDMENTS RELATING TO IN13 SPECTIONS AND INVESTIGATIONS. 

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

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

16 sentence the following: ‘‘Such inspections shall be con17 ducted during the various shifts and days of the week dur18 ing which miners are normally present in the mine to en19 sure that the protections of this Act are afforded to all 

20 miners working all shifts.’’. 

21 (b) INJURY AND ILLNESS REPORTING.—Section 

22 103(d) (30 U.S.C. 813(d)) is amended by striking the last 

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

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

25 include man-hours worked and occupational injuries and 

26 illnesses, and shall be maintained separately for each mine 


emcdonald on DSK2BSOYB1PROD with BILLS
15 

•HR 5663 IH

1 and be reported at a frequency determined by the Sec2 retary, but at least annually. Operators shall be respon3 sible for reporting on all miners working at such mine re4 gardless of their employer, except that independent con5 tractors (within the meaning of section 3(d)) shall only 

6 be responsible for reporting on miners in their employ or 

7 under their direction or authority.’’. 

8 (c) ORDERS FOLLOWING AN ACCIDENT.—Section 

9 103(k) (30 U.S.C. 813(k)) is amended by striking ‘‘, when 

10 present,’’. 

11 (d) CONFLICT OF INTEREST IN THE REPRESENTA12 TION OF MINERS.—Section 103(a) (30 U.S.C. 813(a)) is 

13 amended by adding at the end the following: ‘‘During in14 spections and investigations under this section, and during 

15 any litigation under this Act, no attorney shall represent 

16 or purport to represent both the operator of a coal or other 

17 mine and any other individual, unless such individual has 

18 knowingly and voluntarily waived all actual and reasonably 

19 foreseeable conflicts of interest resulting from such rep20 resentation. The Secretary is authorized to take such ac21 tions as the Secretary considers appropriate to ascertain 

22 whether such individual has knowingly and voluntarily 

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

24 that such an individual cannot be represented adequately 

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


emcdonald on DSK2BSOYB1PROD with BILLS
16 

•HR 5663 IH

1 Secretary may petition the appropriate United States Dis2 trict Court which shall have jurisdiction to disqualify such 

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

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

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

6 TITLE II—ENHANCED 

7 ENFORCEMENT AUTHORITY 

8 SEC. 201. SIGNIFICANT AND SUBSTANTIAL VIOLATIONS. 

9 Section 104(d)(1) (30 U.S.C. 814(d)(1)) is amend10 ed— 

11 (1) in the first sentence— 

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

13 safety standard’’ and inserting ‘‘any provision 

14 of this Act, including any mandatory health or 

15 safety standard or regulation promulgated 

16 under this Act’’; and 

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

18 safety standards’’ and inserting ‘‘such provi19 sions, regulations, or mandatory health or safe20 ty standards’’; 

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

22 mandatory health or safety standard’’ and inserting 

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

24 health or safety standard or regulation promulgated 

25 under this Act,’’; and 


emcdonald on DSK2BSOYB1PROD with BILLS
17 

•HR 5663 IH

1 (3) by inserting after the first sentence the fol2 lowing: ‘‘For purposes of this Act, a violation of a 

3 provision of this Act, including any mandatory 

4 health or safety standard or regulation promulgated 

5 under this Act, is of such nature as could signifi6 cantly and substantially contribute to the cause and 

7 effect of a safety or health hazard if there is a rea8 sonable possibility that such violation could result in 

9 injury, illness, or death.’’. 

10 SEC. 202. A PATTERN OF RECURRING NONCOMPLIANCE OR 

11 ACCIDENTS. 

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

13 as follows: 

14 ‘‘(e) PATTERN OF RECURRING NONCOMPLIANCE OR

15 ACCIDENTS.— 

16 ‘‘(1) PATTERN STATUS.— 

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

18 subsection, an operator of a coal or other mine 

19 shall be in pattern status if the operator has, 

20 as determined based on the regulations promul21 gated under paragraph (8)— 

22 ‘‘(i) a pattern of— 

23 ‘‘(I) citations for significant and 

24 substantial violations; 


emcdonald on DSK2BSOYB1PROD with BILLS
18 

•HR 5663 IH

1 ‘‘(II) citations and withdrawal or2 ders issued for unwarrantable failure 

3 to comply with mandatory health and 

4 safety standards under section 104(d); 

5 ‘‘(III) citations for flagrant viola6 tions within the meaning of section 

7 110(b); 

8 ‘‘(IV) withdrawal orders issued 

9 under any other section of this Act; or 

10 ‘‘(V) accidents, injuries, or ill11 nesses; or 

12 ‘‘(ii) a pattern consisting of any com13 bination of citations, orders, accidents, in14 juries, or illnesses described in subclauses 

15 (I) through (V). 

16 ‘‘(B) MITIGATING CIRCUMSTANCES.—Not17 withstanding subparagraph (A), if the Sec18 retary, after conducting an assessment of a coal 

19 or other mine that otherwise qualifies for pat20 tern status, certifies that there are mitigating 

21 circumstances wherein the operator has elimi22 nated any elevated risk to the health or safety 

23 of miners and has taken sufficient measures to 

24 ensure such elevated risk will not recur, the 

25 Secretary may deem such mine to not be in patVerDate Mar 15 2010 22:20 Jul 02, 2010 Jkt 089200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\H5663.IH H5663

emcdonald on DSK2BSOYB1PROD with BILLS
19 

•HR 5663 IH

1 tern status under this subsection. The Sec2 retary shall issue any such certification of such 

3 mitigating circumstances that would preclude 

4 the placement of a mine in pattern status as a 

5 written finding, which shall, not later than 10 

6 days after the certification is made, be— 

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

8 and 

9 ‘‘(ii) transmitted to the Committee on 

10 Education and Labor of the House of Rep11 resentatives and the Committee on Health, 

12 Education, Labor, and Pensions of the 

13 Senate. 

14 ‘‘(2) ACTIONS FOLLOWING PLACEMENT OF

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

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

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

18 the mine is being placed in pattern status; 

19 ‘‘(B) issue an order requiring such oper20 ator to cause all persons to be withdrawn from 

21 such mine, except those persons referred to in 

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

23 Secretary issued under this subsection; 

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

25 paragraph (3) to such operator; and 


emcdonald on DSK2BSOYB1PROD with BILLS
20 

•HR 5663 IH

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

2 inspections of such mine required under section 

3 103 be increased to 8 per year for an under4 ground mine and 4 per year for a surface mine 

5 while the mine is in pattern status. 

6 Notice advising operators that they face potential 

7 placement in pattern status shall not be a require8 ment for issuing a withdrawal order to operators 

9 under this subsection. 

10 ‘‘(3) REMEDIATION ORDER.— 

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

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

13 may require the operator to carry out one or 

14 more of the following requirements, pursuant to 

15 a timetable for commencing and completing 

16 such actions or as a condition of miners reen17 tering the mine: 

18 ‘‘(i) Provide specified training, includ19 ing training not otherwise required under 

20 this Act. 

21 ‘‘(ii) Institute and implement an effec22 tive health and safety management pro23 gram approved by the Secretary, includ24 ing— 


emcdonald on DSK2BSOYB1PROD with BILLS
21 

•HR 5663 IH

1 ‘‘(I) the employment of safety 

2 professionals, certified persons, and 

3 adequate numbers of personnel for the 

4 mine, as may be required by the Sec5 retary; 

6 ‘‘(II) specific inspection, record7 keeping, reporting and other require8 ments for the mine as the Secretary 

9 may establish; and 

10 ‘‘(III) other requirements to en11 sure compliance and to protect the 

12 health and safety of miners or prevent 

13 accidents or injuries as the Secretary 

14 may determine are necessary. 

15 ‘‘(iii) Facilitate any effort by the Sec16 retary to communicate directly with miners 

17 employed at the mine outside the presence 

18 of the mine operators or its agents, for the 

19 purpose of obtaining information about 

20 mine conditions, health and safety prac21 tices, and advising miners of their rights 

22 under this Act. 

23 ‘‘(B) MODIFICATION OF AND FAILURE TO

24 COMPLY WITH REMEDIATION ORDER.—The Sec25 retary may modify the remediation order, as 


emcdonald on DSK2BSOYB1PROD with BILLS
22 

•HR 5663 IH

1 necessary, to protect the health and safety of 

2 miners. If the mine operator fails to fully com3 ply with the remediation order during the time 

4 a mine is in pattern status, the Secretary shall 

5 reinstate the withdrawal order under paragraph 

6 (2)(B). 

7 ‘‘(C) EXTENSION OF DEADLINES.—An ex8 tension of a deadline under the remediation 

9 order may be granted on a temporary basis and 

10 only upon a showing that the operator took all 

11 feasible measures to comply with the order and 

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

13 comply is beyond the control of the operator. 

14 ‘‘(4) CONDITIONS FOR LIFTING WITHDRAWAL

15 ORDER.—A withdrawal order issued under para16 graph (2)(B) shall not be lifted until the Secretary 

17 verifies that— 

18 ‘‘(A) any and all violations or other condi19 tions in the mine identified in the remediation 

20 order have been or are being fully abated or 

21 corrected as outlined in the remediation order; 

22 and 

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

24 actions under the remediation order that are re25 quired for reopening the mine. 


emcdonald on DSK2BSOYB1PROD with BILLS
23 

•HR 5663 IH

1 ‘‘(5) PERFORMANCE EVALUATION.— 

2 ‘‘(A) PERFORMANCE BENCHMARKS.—The 

3 Secretary shall evaluate the performance of 

4 each operator whose mine is in pattern status 

5 every 90 days during which the mine is pro6 ducing and determine if, for such 90-day pe7 riod— 

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

9 significant and substantial violations— 

10 ‘‘(I) are, on average, in the top 

11 performing 35th percentile of such 

12 rates, respectively, for all mines of 

13 similar size and type; or 

14 ‘‘(II) have been reduced by 70 

15 percent since such mine was placed on 

16 pattern status; 

17 ‘‘(ii) the operator’s accident and in18 jury rates are, on average, in the top per19 forming 35th percentile of such rates, re20 spectively, for all mines of similar size and 

21 type; and 

22 ‘‘(iii) no citation or withdrawal order 

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

24 withdrawal order for imminent danger 

25 under section 107 arising from a signifiVerDate Mar 15 2010 22:20 Jul 02, 2010 Jkt 089200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:\BILLS\H5663.IH H5663

emcdonald on DSK2BSOYB1PROD with BILLS
24 

•HR 5663 IH

1 cant and substantial violation, and no fla2 grant violations within the meaning of sec3 tion 110(b), were issued for such mine. 

4 ‘‘(B) REISSUANCE OF WITHDRAWAL OR5 DERS.—If an operator being evaluated fails to 

6 achieve the performance benchmarks described 

7 in subparagraph (A), the Secretary may reissue 

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

9 remedy any recurring conditions that led to pat10 tern status under this subsection, and may 

11 modify the remediation order, as necessary, to 

12 protect the health and safety of miners. 

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

14 ‘‘(A) PERFORMANCE BENCHMARKS.—The 

15 Secretary shall remove an operator of a coal or 

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

17 period during which the mine is producing— 

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

19 significant and substantial violations— 

20 ‘‘(I) are, on average, in the top 

21 performing 25th percentile of such 

22 rates, respectively, for all mines of 

23 similar size and type; or 


emcdonald on DSK2BSOYB1PROD with BILLS
25 

•HR 5663 IH

1 ‘‘(II) have been reduced by 80 

2 percent since such mine was placed on 

3 pattern status; 

4 ‘‘(ii) the operator’s accident and in5 jury rates are, on average, in the top per6 forming 25th percentile of such rates, re7 spectively, for all mines of similar size and 

8 type; and 

9 ‘‘(iii) no citation or withdrawal orders 

10 for violations under section 104(d), no 

11 withdrawal orders for imminent danger 

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

16 ‘‘(B) CONTINUATION OF PATTERN STA17 TUS.—Should the mine operator fail to meet 

18 the performance benchmarks described in sub19 paragraph (A), the Secretary shall extend the 

20 mine’s placement in pattern status until such 

21 benchmarks are achieved. 

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

23 this subsection is contested, the review of such order 

24 shall be conducted on an expedited basis, in accord25 ance with section 105(d). 


emcdonald on DSK2BSOYB1PROD with BILLS
26 

•HR 5663 IH

1 ‘‘(8) REGULATIONS; INFORMATION ON PER2 FORMANCE.— 

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

4 days after the date of enactment of the Miner 

5 Safety and Health Act of 2010, the Secretary 

6 shall issue interim final regulations that shall 

7 define— 

8 ‘‘(i) the threshold criteria to trigger 

9 pattern status under paragraph (1) and 

10 cause a withdrawal order to be issued or 

11 reissued; and 

12 ‘‘(ii) the performance benchmarks de13 scribed in paragraphs (5)(A) and (6)(A). 

14 ‘‘(B) THRESHOLD CRITERIA.—In estab15 lishing threshold criteria to trigger pattern sta16 tus for mines with significantly poor compliance 

17 that contributes to unsafe or unhealthy condi18 tions, the Secretary— 

19 ‘‘(i) shall consider frequency and rates 

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

21 and rates of reportable accidents and inju22 ries within the preceding 180-day period; 

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

24 type, production levels, number of miners, 

25 hours worked by miners, number of mechaVerDate Mar 15 2010 22:20 Jul 02, 2010 Jkt 089200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\H5663.IH H5663

emcdonald on DSK2BSOYB1PROD with BILLS
27 

•HR 5663 IH

1 nized mining units (or similar production 

2 characteristics), and the designation of a 

3 representative of miners at the mine; 

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

5 of citations, violations, orders, and other 

6 enforcement actions, or rates of reportable 

7 accidents and injuries, over any period de8 termined relevant by the Secretary; 

9 ‘‘(iv) may assign weight to various 

10 types of citations, orders, accidents, inju11 ries, illnesses, or other factors; and 

12 ‘‘(v) may include other factors the 

13 Secretary may determine appropriate to 

14 protect the safety and health of miners. 

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

16 2 years after the date of enactment of the 

17 Miner Safety and Health Act of 2010, the Sec18 retary shall promulgate a final regulation imple19 menting this paragraph. 

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

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

23 data used to determine pattern status for all coal or 

24 other mines. Such database shall be searchable, shall 

25 have the capacity to provide comparative data about 


emcdonald on DSK2BSOYB1PROD with BILLS
28 

•HR 5663 IH

1 the health and safety at mines of similar sizes and 

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

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

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

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

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

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

15 the Miner Safety and Health Act of 2010, the 

16 Secretary shall assess and collect fees, in ac17 cordance with this paragraph, from each coal or 

18 other mine in pattern status for the costs of ad19 ditional inspections under this subsection. The 

20 Secretary shall issue, by rule, a schedule of fees 

21 to be assessed against coal or other mines of 

22 varying types and sizes, and shall collect and 

23 assess amounts under this paragraph based on 

24 the schedule. 


emcdonald on DSK2BSOYB1PROD with BILLS
29 

•HR 5663 IH

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

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

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

11 to the Secretary, as provided in subparagraph 

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

13 additional inspections required under paragraph 

14 (2)(D). 

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

20 Mine Safety and Health for each fiscal year in 

21 which fees are collected under subparagraph 

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

24 assessed pursuant to this paragraph. Such 


emcdonald on DSK2BSOYB1PROD with BILLS
30 

•HR 5663 IH

1 amounts are authorized to remain available 

2 until expended. 

3 ‘‘(E) CREDITING AND AVAILABILITY OF

4 FEES.—Fees authorized and collected under 

5 this paragraph shall be available for obligation 

6 only to the extent and in the amount provided 

7 in advance in appropriations Acts.’’. 

8 SEC. 203. INJUNCTIVE AUTHORITY. 

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

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

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

12 of the Secretary constitutes a continuing hazard to the 

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

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

16 SEC. 204. REVOCATION OF APPROVAL OF PLANS. 

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

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

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

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

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

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

25 that was approved by the Secretary under this Act 


emcdonald on DSK2BSOYB1PROD with BILLS
31 

•HR 5663 IH

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

4 operation of such mine under such plan constitutes 

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

7 plan. 

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

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

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

13 be withdrawn from such mine, and to be prohibited 

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

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

18 PLAN. 

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

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

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

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

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

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

25 the challenging party establishes that such decision was 


emcdonald on DSK2BSOYB1PROD with BILLS
32 

•HR 5663 IH

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

2 not in accordance with law.’’. 

3 TITLE III—PENALTIES 

4 SEC. 301. CIVIL PENALTIES. 

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

6 (30 U.S.C. 820(a)(1)) is amended— 

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

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

11 substantial violation, the penalty shall be not more 

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

13 (b) INCREASED CIVIL PENALTIES DURING PATTERN

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

15 by adding at the end the following: 

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

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

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

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

23 Act, including any mandatory health or safety standard 

24 or regulation promulgated under this Act. Such increased 

25 penalty shall be twice the amount that would otherwise 


emcdonald on DSK2BSOYB1PROD with BILLS
33 

•HR 5663 IH

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

2 regulations promulgated under this Act, subject to the 

3 maximum civil penalty established for the violation under 

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

5 mine that occur during the period beginning after the 

6 failed performance review following the first performance 

7 review, and ending when the Secretary determines at a 

8 subsequent performance review that the mine meets the 

9 performance benchmarks under section 104(e)(5)(A).’’. 

10 (c) CIVIL PENALTY FOR RETALIATION.—Section 

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

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

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

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

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

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

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

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

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

25 as follows: 


emcdonald on DSK2BSOYB1PROD with BILLS
34 

•HR 5663 IH

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

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

4 health or safety standard or regulation promulgated under 

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

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

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

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

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

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

15 SEC. 303. CRIMINAL PENALTIES. 

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

18 amended— 

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

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

22 for not more than one year’’ and inserting 

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

24 5 years’’; and 


emcdonald on DSK2BSOYB1PROD with BILLS
35 

•HR 5663 IH

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

2 for not more than five years’’ and inserting 

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

4 10 years’’. 

5 (b) CRIMINAL PENALTY FOR RETALIATION.—Section 

6 110(d) is further amended— 

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

8 and 

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

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

12 that interferes with the lawful employment or livelihood 

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

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

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

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

20 (c) ADVANCE NOTICE OF INSPECTIONS.— 

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

22 820(e)) is amended— 

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

24 ‘‘(1) Unless’’; and 

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


emcdonald on DSK2BSOYB1PROD with BILLS
36 

•HR 5663 IH

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

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

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

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

8 or both.’’. 

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

11 by adding at the end the following: 

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

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

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

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

17 prescribed by the Secretary— 

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

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

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

23 under such subsection.’’. 


emcdonald on DSK2BSOYB1PROD with BILLS
37 

•HR 5663 IH

1 SEC. 304. COMMISSION REVIEW OF PENALTY ASSESS2 MENTS. 

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

4 striking ‘‘In assessing civil monetary penalties, the Com5 mission shall consider’’ and inserting the following: ‘‘In 

6 any review of a citation and proposed penalty assessment 

7 contested by an operator, the Commission shall assess not 

8 less than the penalty derived by using the same method9 ology (including any point system) prescribed in regula10 tions under this Act, so as to ensure consistency in oper11 ator penalty assessments, except that the Commission may 

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

13 from the utilization of such methodology if the Commis14 sion finds that there are extraordinary circumstances. If 

15 there is no such methodology prescribed for a citation or 

16 there are such extraordinary circumstances, the Commis17 sion shall assess the penalty by considering’’. 

18 SEC. 305. DELINQUENT PAYMENTS AND PREJUDGMENT IN19 TEREST. 

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

21 (30 U.S.C. 820(j)) is amended by striking the second and 

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

23 order interest on such penalties shall begin to accrue on 

24 the date the operator contests a citation issued under this 

25 Act, including any mandatory health or safety standard 

26 or regulation promulgated under this Act, and shall end 


emcdonald on DSK2BSOYB1PROD with BILLS
38 

•HR 5663 IH

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

2 interest shall be calculated at the current underpayment 

3 rate determined by the Secretary of the Treasury pursu4 ant to section 6621 of the Internal Revenue Code of 1986, 

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

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

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

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

9 (b) ENSURING PAYMENT OF PENALTIES.— 

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

11 820) is further amended— 

12 (A) by redesignating subsection (l) as sub13 section (m); and 

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

15 following: 

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

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

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

19 penalty assessment that has become a final order of 

20 the Commission or a court within 90 days after such 

21 assessment became a final order, the Secretary shall 

22 send the operator a letter advising the operator of 

23 the consequences under this subsection of such fail24 ure to pay. The letter shall also advise the operator 

25 of the opportunity to enter into or modify a payment 


emcdonald on DSK2BSOYB1PROD with BILLS
39 

•HR 5663 IH

1 plan with the Secretary based upon a demonstrated 

2 inability to pay, the procedure for entering into such 

3 plan, and the consequences of not entering into or 

4 not complying with such plan. 

5 ‘‘(2) WITHDRAWAL ORDERS FOLLOWING FAIL6 URE TO PAY.—If an operator that receives a letter 

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

8 the date that is 180 days after such assessment be9 came a final order and has not entered into a pay10 ment plan with the Secretary, the Secretary shall 

11 issue an order requiring such operator to cause all 

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

13 to be withdrawn from, and to be prohibited from en14 tering, the mine that is covered by the final order 

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

16 such assessment in full (including interest and ad17 ministrative costs) or enters into a payment plan 

18 with the Secretary. If such operator enters into a 

19 payment plan with the Secretary and at any time 

20 fails to comply with the terms specified in such pay21 ment plan, the Secretary shall issue an order requir22 ing such operator to cause all persons, except those 

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

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

25 be prohibited from entering such mine, until the opVerDate Mar 15 2010 22:20 Jul 02, 2010 Jkt 089200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\H5663.IH H5663

emcdonald on DSK2BSOYB1PROD with BILLS
40 

•HR 5663 IH

1 erator rectifies the noncompliance with the payment 

2 plan in the manner specified in such payment 

3 plan.’’. 

4 (2) APPLICABILITY AND EFFECTIVE DATE.— 

5 The amendments made by paragraph (1) shall apply 

6 to all unpaid civil penalty assessments under the 

7 Federal Mine Safety and Health Act of 1977 (30 

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

9 penalty assessment that became a final order of the 

10 Commission or a court before the date of enactment 

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

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

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

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

16 TITLE IV—WORKER RIGHTS AND 

17 PROTECTIONS 

18 SEC. 401. PROTECTION FROM RETALIATION. 

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

20 as follows: 

21 ‘‘(c) PROTECTION FROM RETALIATION.— 

22 ‘‘(1) RETALIATION PROHIBITED.— 

23 ‘‘(A) RETALIATION FOR COMPLAINT OR

24 TESTIMONY.—No person shall discharge or in 

25 any manner discriminate against or cause to be 


emcdonald on DSK2BSOYB1PROD with BILLS
41 

•HR 5663 IH

1 discharged or cause discrimination against or 

2 otherwise interfere with the exercise of the stat3 utory rights of any miner or other employee of 

4 an operator, representative of miners, or appli5 cant for employment, because— 

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

7 representative, or applicant for employ8 ment— 

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

14 miners at the coal or other mine of an 

15 alleged danger or safety or health vio16 lation in a coal or other mine; 

17 ‘‘(II) instituted or caused to be 

18 instituted, or is about to institute or 

19 cause to be instituted, any proceeding 

20 under or related to this Act or has 

21 testified or is about to testify in any 

22 such proceeding or because of the ex23 ercise by such miner or other em24 ployee, representative, or applicant for 

25 employment on behalf of him or herVerDate Mar 15 2010 22:20 Jul 02, 2010 Jkt 089200 PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 E:\BILLS\H5663.IH H5663

emcdonald on DSK2BSOYB1PROD with BILLS
42 

•HR 5663 IH

1 self or others of any right afforded by 

2 this Act; 

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

4 testify before Congress or any Federal 

5 or State proceeding related to safety 

6 or health in a coal or other mine; or 

7 ‘‘(IV) refused to violate any pro8 vision of this Act; or 

9 ‘‘(ii) such miner is the subject of med10 ical evaluations and potential transfer 

11 under a standard published pursuant to 

12 section 101. 

13 ‘‘(B) RETALIATION FOR REFUSAL TO PER14 FORM DUTIES.— 

15 ‘‘(i) IN GENERAL.—No person shall 

16 discharge or in any manner discriminate 

17 against a miner or other employee of an 

18 operator for refusing to perform the min19 er’s or other employee’s duties if the miner 

20 or other employee has a good-faith and 

21 reasonable belief that performing such du22 ties would pose a safety or health hazard 

23 to the miner or other employee or to any 

24 other miner or employee. 


emcdonald on DSK2BSOYB1PROD with BILLS
43 

•HR 5663 IH

1 ‘‘(ii) STANDARD.—For purposes of 

2 clause (i), the circumstances causing the 

3 miner’s or other employee’s good-faith be4 lief that performing such duties would pose 

5 a safety or health hazard shall be of such 

6 a nature that a reasonable person, under 

7 the circumstances confronting the miner or 

8 other employee, would conclude that there 

9 is such a hazard. In order to qualify for 

10 protection under this paragraph, the miner 

11 or other employee, when practicable, shall 

12 have communicated or attempted to com13 municate the safety or health concern to 

14 the operator and have not received from 

15 the operator a response reasonably cal16 culated to allay such concern. 

17 ‘‘(2) COMPLAINT.—Any miner or other em18 ployee or representative of miners or applicant for 

19 employment who believes that he or she has been 

20 discharged, disciplined, or otherwise discriminated 

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

22 may file a complaint with the Secretary alleging 

23 such discrimination not later than 180 days after 

24 the later of— 


emcdonald on DSK2BSOYB1PROD with BILLS
44 

•HR 5663 IH

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 

10 of such complaint, the Secretary shall forward 

11 a 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 

15 investigation, make the determination required 

16 under subparagraph (B) regarding the rein17 statement 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 

22 the immediate reinstatement of the miner or 

23 other employee until there has been a final 

24 Commission order disposing of the underlying 

25 complaint of the miner or other employee. If eiVerDate Mar 15 2010 22:20 Jul 02, 2010 Jkt 089200 PO 00000 Frm 00044 Fmt 6652 Sfmt 6201 E:\BILLS\H5663.IH H5663

emcdonald on DSK2BSOYB1PROD with BILLS
45 

•HR 5663 IH

1 ther the Secretary or the miner or other em2 ployee pursues the underlying complaint, such 

3 reinstatement shall remain in effect until the 

4 Commission has disposed of such complaint on 

5 the merits, regardless of whether the Secretary 

6 pursues such complaint by filing a complaint 

7 under subparagraph (D) or the miner or other 

8 employee pursues such complaint by filing an 

9 action under paragraph (4). If neither the Sec10 retary nor the miner or other employee pursues 

11 the underlying complaint within the periods 

12 specified in paragraph (4), such reinstatement 

13 shall remain in effect until such time as the 

14 Commission may, upon motion of the operator 

15 and after providing notice and an opportunity 

16 to be heard to the parties, vacate such com17 plaint for failure to prosecute. 

18 ‘‘(C) INVESTIGATION.—Such investigation 

19 shall include interviewing the complainant 

20 and— 

21 ‘‘(i) providing the respondent an op22 portunity to submit to the Secretary a 

23 written response to the complaint and to 

24 present statements from witnesses or pro25 vide evidence; and 


emcdonald on DSK2BSOYB1PROD with BILLS
46 

•HR 5663 IH

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, 

6 upon such investigation, the Secretary deter7 mines that the provisions of this subsection 

8 have been violated, the Secretary shall imme9 diately file a complaint with the Commission, 

10 with service upon the alleged violator and the 

11 miner or other employee or representative of 

12 miners alleging such discrimination or inter13 ference and propose an order granting appro14 priate relief. 

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

16 Commission shall afford an opportunity for a 

17 hearing (in accordance with section 554 of title 

18 5, United States Code, but without regard to 

19 subsection (a)(3) of such section) and there20 after shall issue an order, based upon findings 

21 of fact, affirming, modifying, or vacating the 

22 Secretary’s proposed order, or directing other 

23 appropriate relief. Such order shall become final 

24 30 days after its issuance. The complaining 

25 miner or other employee, representative, or apVerDate Mar 15 2010 22:20 Jul 02, 2010 Jkt 089200 PO 00000 Frm 00046 Fmt 6652 Sfmt 6201 E:\BILLS\H5663.IH H5663

emcdonald on DSK2BSOYB1PROD with BILLS
47 

•HR 5663 IH

1 plicant for employment may present additional 

2 evidence on his or her own behalf during any 

3 hearing held pursuant to this paragraph. 

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

5 authority in such proceedings to require a per6 son committing a violation of this subsection to 

7 take such affirmative action to abate the viola8 tion and prescribe a remedy as the Commission 

9 considers appropriate, including— 

10 ‘‘(i) the rehiring or reinstatement of 

11 the miner or other employee with back pay 

12 and interest and without loss of position or 

13 seniority, and restoration of the terms, 

14 rights, conditions, and privileges associated 

15 with the complainant’s employment; 

16 ‘‘(ii) any other compensatory and con17 sequential damages sufficient to make the 

18 complainant whole, and exemplary dam19 ages where appropriate; and 

20 ‘‘(iii) expungement of all warnings, 

21 reprimands, or derogatory references that 

22 have been placed in paper or electronic 

23 records or databases of any type relating 

24 to the actions by the complainant that 

25 gave rise to the unfavorable personnel acVerDate Mar 15 2010 22:20 Jul 02, 2010 Jkt 089200 PO 00000 Frm 00047 Fmt 6652 Sfmt 6201 E:\BILLS\H5663.IH H5663

emcdonald on DSK2BSOYB1PROD with BILLS
48 

•HR 5663 IH

1 tion, and, at the complainant’s direction, 

2 transmission of a copy of the decision on 

3 the complaint to any person whom the 

4 complainant reasonably believes may have 

5 received such unfavorable information. 

6 ‘‘(4) NOTICE TO AND ACTION OF COMPLAIN7 ANT.— 

8 ‘‘(A) NOTICE TO COMPLAINANT.—Not 

9 later than 90 days of the receipt of a complaint 

10 filed under paragraph (2), the Secretary shall 

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

12 applicant for employment, or representative of 

13 miners of his determination whether a violation 

14 has occurred. 

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

16 Secretary, upon investigation, determines that 

17 the provisions of this subsection have not been 

18 violated, the complainant shall have the right, 

19 within 30 days after receiving notice of the Sec20 retary’s determination, to file an action in his 

21 or her own behalf before the Commission, 

22 charging discrimination or interference in viola23 tion of paragraph (1). 

24 ‘‘(C) HEARING AND DECISION.—The Com25 mission shall afford an opportunity for a hearVerDate Mar 15 2010 22:20 Jul 02, 2010 Jkt 089200 PO 00000 Frm 00048 Fmt 6652 Sfmt 6201 E:\BILLS\H5663.IH H5663

emcdonald on DSK2BSOYB1PROD with BILLS
49 

•HR 5663 IH

1 ing (in accordance with section 554 of title 5, 

2 United States Code, but without regard to sub3 section (a)(3) of such section), and thereafter 

4 shall issue an order, based upon findings of 

5 fact, dismissing or sustaining the complainant’s 

6 charges and, if the charges are sustained, 

7 granting such relief as it deems appropriate as 

8 described in paragraph (3)(D). Such order shall 

9 become final 30 days after its issuance. 

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

11 complaint pursuant to this subsection, the Commis12 sion may determine that a violation of paragraph (1) 

13 has occurred only if the complainant demonstrates 

14 that any conduct described in paragraph (1) with re15 spect to the complainant was a contributing factor 

16 in the adverse action alleged in the complaint. A de17 cision or order that is favorable to the complainant 

18 shall not be issued pursuant to this subsection if the 

19 respondent demonstrates by clear and convincing 

20 evidence that the respondent would have taken the 

21 same adverse action in the absence of such conduct. 

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

23 issued sustaining the complainant’s charges under 

24 this subsection, a sum equal to the aggregate 

25 amount of all costs and expenses, including attorVerDate Mar 15 2010 22:20 Jul 02, 2010 Jkt 089200 PO 00000 Frm 00049 Fmt 6652 Sfmt 6201 E:\BILLS\H5663.IH H5663

emcdonald on DSK2BSOYB1PROD with BILLS
50 

•HR 5663 IH

1 ney’s fees, as determined by the Commission to have 

2 been reasonably incurred by the complainant for, or 

3 in connection with, the institution and prosecution of 

4 such proceedings shall be assessed against the per5 son committing such violation. The Commission 

6 shall determine whether such costs and expenses 

7 were reasonably incurred by the complainant without 

8 reference to whether the Secretary also participated 

9 in the proceeding. 

10 ‘‘(7) EXPEDITED PROCEEDINGS; JUDICIAL RE11 VIEW.—Proceedings under this subsection shall be 

12 expedited by the Secretary and the Commission. Any 

13 order issued by the Commission under this sub14 section shall be subject to judicial review in accord15 ance with section 106. Violations by any person of 

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

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

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

19 remedies provided for in this subsection may not be 

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

21 of employment, including by any pre-dispute arbitra22 tion agreement or collective bargaining agreement. 

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

24 be construed to diminish the rights, privileges, or 

25 remedies of any employee who exercises rights under 


emcdonald on DSK2BSOYB1PROD with BILLS
51 

•HR 5663 IH

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

2 any collective bargaining agreement.’’. 

3 SEC. 402. PROTECTION FROM LOSS OF PAY. 

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

5 follows: 

6 ‘‘SEC. 111. ENTITLEMENT OF MINERS. 

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

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

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

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

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

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

13 to full compensation by the operator at their regular 

14 rates of pay and in accordance with their regular 

15 schedules of pay for the entire period for which they 

16 are idled. 

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

18 Secretary finds that such mine or such area of a 

19 mine was closed by the operator in anticipation of 

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

21 idled by such closure shall be entitled to full com22 pensation by the operator at their regular rates of 

23 pay and in accordance with their regular schedules 

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


emcdonald on DSK2BSOYB1PROD with BILLS
52 

•HR 5663 IH

1 as the Secretary authorizes reopening of such mine 

2 or such area of the mine. 

3 ‘‘(3) REFUSAL TO COMPLY.—Whenever an op4 erator violates or fails or refuses to comply with any 

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

6 110, all miners employed at the affected mine who 

7 would have been withdrawn from, or prevented from 

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

9 such order shall be entitled to full compensation by 

10 the operator at their regular rates of pay, in addi11 tion to pay received for work performed after such 

12 order was issued, for the period beginning when 

13 such order was issued and ending when such order 

14 is complied with, vacated, or terminated. 

15 ‘‘(b) ENFORCEMENT.— 

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

17 shall have authority to order compensation due 

18 under this section upon the filing of a complaint by 

19 a miner or his representative and after opportunity 

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

21 States Code. Whenever the Commission issues an 

22 order sustaining the complaint under this subsection 

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

24 complainant reasonable attorneys’ fees and costs. 


emcdonald on DSK2BSOYB1PROD with BILLS
53 

•HR 5663 IH

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

2 Consistent with the authority of the Secretary to 

3 order miners withdrawn from a mine under this Act, 

4 the Secretary shall order a mine that has been sub5 ject to a withdrawal order under section 103, 104, 

6 107, 108, or 110, and has reopened, to be closed 

7 again if compensation in accordance with the provi8 sions of this section is not paid by the end of the 

9 next regularly scheduled payroll period following the 

10 lifting of a withdrawal order.’’. 

11 SEC. 403. UNDERGROUND COAL MINER EMPLOYMENT 

12 STANDARD. 

13 The Federal Mine Safety and Health Act of 1977 is 

14 further amended by adding at the end of title I the fol15 lowing: 

16 ‘‘SEC. 117. UNDERGROUND COAL MINER EMPLOYMENT 

17 STANDARD. 

18 ‘‘(a) IN GENERAL.—An operator of an underground 

19 coal mine may not discharge or constructively discharge 

20 a miner who is paid on an hourly basis and employed at 

21 an underground coal mine without reasonable job-related 

22 grounds based on a failure to satisfactorily perform job 

23 duties, including compliance with this Act and with man24 datory health and safety standards or other regulations 

25 issued under this Act, or other legitimate business reason, 


emcdonald on DSK2BSOYB1PROD with BILLS
54 

•HR 5663 IH

1 where the miner has completed the employer’s proba2 tionary period, not to exceed 6 months. 

3 ‘‘(b) CAUSE OF ACTION.—A miner aggrieved by a 

4 violation of subsection (a) may file a complaint in Federal 

5 district court in the district where the mine is located 

6 within 1 year of such violation. 

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

8 for any prevailing miner the court shall take affirmative 

9 action to further the purposes of the Act, which may in10 clude reinstatement with backpay and compensatory dam11 ages. Reasonable attorneys’ fees and costs shall be award12 ed to any prevailing miner under this section. 

13 ‘‘(d) PRE-DISPUTE WAIVER PROHIBITED.—A min14 er’s right to a cause of action under this section may not 

15 be waived with respect to disputes that have not arisen 

16 as of the time of the waiver. 

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

18 be construed to limit the availability of rights and rem19 edies of miners under any other State or Federal law or 

20 a collective bargaining agreement.’’. 


emcdonald on DSK2BSOYB1PROD with BILLS
55 

•HR 5663 IH

1 TITLE V—MODERNIZING 

2 HEALTH AND SAFETY STAND3 ARDS 

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

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

6 adding at the end the following: 

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

8 the interim final rules promulgated under subparagraph 

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

11 coal mine to ensure that each miner entering the mine 

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

13 current conditions of the mine, including— 

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

15 violate a mandatory health or safety standard or a 

16 plan approved under this Act; and 

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

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

21 who is responsible for ensuring the safe and healthful 

22 working conditions at the mine, including mine foremen, 

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

24 exiting the mine or workplace, verbally communicate with 

25 any oncoming agent replacing the exiting agent on duty 


emcdonald on DSK2BSOYB1PROD with BILLS
56 

•HR 5663 IH

1 in order to update the oncoming agent on the conditions 

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

3 including any conditions that are hazardous or that violate 

4 a mandatory health or safety standard or a plan approved 

5 under this Act. Such communications process shall be 

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

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

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

10 the oncoming agent of the operator shall meet with the 

11 individual who was responsible for examining the mine to 

12 obtain the necessary information. 

13 ‘‘(C) Not later than 90 days after the date of enact14 ment of the Miner Safety and Health Act of 2010, the 

15 Secretary shall promulgate interim final rules imple16 menting the requirements of subparagraphs (A) and 

17 (B).’’. 

18 SEC. 502. ROCK DUST STANDARDS. 

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

20 is amended— 

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

22 following: ‘‘ROCK DUST.— 

23 ‘‘(1) IN GENERAL.—Where rock’’; 

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

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


emcdonald on DSK2BSOYB1PROD with BILLS
57 

•HR 5663 IH

1 present in any ventilating current, the percentage of 

2 incombustible content of such combined dusts shall 

3 be increased 0.4 percent for each 0.1 percent of 

4 methane.’’; and 

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

6 ‘‘(2) METHODS OF MEASUREMENT.— 

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

8 underground coal mine shall take accurate sam9 ples of the amount of coal dust, including float 

10 coal dust deposited on rock-dusted surfaces, 

11 loose coal, and other combustible materials in 

12 the active workings of such mines, to ensure 

13 that the coal dust is kept below explosive levels 

14 through the appropriate application of rock 

15 dusting. 

16 ‘‘(B) DIRECT READING MONITORS.—By 

17 the later of June 15, 2011, or the date that is 

18 30 days after the Secretary of Health and 

19 Human Services has certified in writing that di20 rect reading monitors are commercially avail21 able to measure total incombustible content in 

22 coal dust and the Department of Labor has ap23 proved such monitors for use in underground 

24 coal mines, the Secretary shall require operaVerDate Mar 15 2010 22:20 Jul 02, 2010 Jkt 089200 PO 00000 Frm 00057 Fmt 6652 Sfmt 6201 E:\BILLS\H5663.IH H5663

emcdonald on DSK2BSOYB1PROD with BILLS
58 

•HR 5663 IH

1 tors to take coal dust samples using direct 

2 reading monitors. 

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

4 not later than 180 days after the date of enact5 ment of the Miner Safety and Health Act of 

6 2010, promulgate an interim final rule that pre7 scribes methods for sampling of total incombus8 tible content of coal dust using direct reading 

9 monitors and includes requirements for loca10 tions, methods, and intervals for mandatory op11 erator sampling. 

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

13 1 year after the date of enactment of the Miner 

14 Safety and Health Act of 2010, the Secretary 

15 of Health and Human Services shall, based 

16 upon the latest research, recommend to the 

17 Secretary of Labor any revisions to the manda18 tory operator sampling locations, methods, and 

19 intervals included in the interim final rule de20 scribed in subparagraph (B) that may be war21 ranted in light of such research.’’. 

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

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

24 Human Services, in consultation with the Secretary of 

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


emcdonald on DSK2BSOYB1PROD with BILLS
59 

•HR 5663 IH

1 Education and Labor of the House of Representatives and 

2 the Committee on Health, Education, Labor, and Pen3 sions of the Senate, a report— 

4 (1) regarding whether any direct reading device 

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

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

7 864(d)(2)(B)) is sufficiently reliable and accurate 

8 for the enforcement of the mandatory health or safe9 ty standards by the Secretary of Labor under such 

10 Act, and whether additional improvement to such di11 rect reading device, or additional verification regard12 ing reliability and accuracy, would be needed for en13 forcement purposes; and 

14 (2) identifying any limitations or impediments 

15 for such use in underground coal mines. 

16 SEC. 503. ATMOSPHERIC MONITORING SYSTEMS. 

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

18 at the end the following: 

19 ‘‘(u) ATMOSPHERIC MONITORING SYSTEMS.— 

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

21 than 6 months after the date of enactment of the 

22 Miner Safety and Health Act of 2010, the Director 

23 of the National Institute for Occupational Safety 

24 and Health, acting through the Office of Mine SafeVerDate Mar 15 2010 22:20 Jul 02, 2010 Jkt 089200 PO 00000 Frm 00059 Fmt 6652 Sfmt 6201 E:\BILLS\H5663.IH H5663

emcdonald on DSK2BSOYB1PROD with BILLS
60 

•HR 5663 IH

1 ty and Health Research, shall issue recommenda2 tions 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 

6 and safety of underground coal miners; and 

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

9 can continuously monitor the mine atmosphere 

10 following incidents such as fires, explosions, en11 trapments, and inundations. 

12 ‘‘(2) ATMOSPHERIC MONITORING SYSTEM REG13 ULATIONS.—Not later than 270 days following the 

14 receipt of the recommendations described in para15 graph (1), the Secretary shall promulgate regula16 tions requiring that each operator of an under17 ground coal mine install atmospheric monitoring sys18 tems, consistent with such recommendations, that— 

19 ‘‘(A) protect miners where the miners nor20 mally work and travel; 

21 ‘‘(B) provide real-time information regard22 ing methane and carbon monoxide levels, and 

23 airflow direction, as appropriate, with sensing, 

24 annunciating, and recording capabilities; and 


emcdonald on DSK2BSOYB1PROD with BILLS
61 

•HR 5663 IH

1 ‘‘(C) can, to the maximum extent prac2 ticable, withstand explosions and fires.’’. 

3 SEC. 504. TECHNOLOGY RELATED TO RESPIRABLE DUST. 

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

5 (1) by striking ‘‘of Health and Human Serv6 ices’’; and 

7 (2) by striking the second sentence and insert8 ing the following: ‘‘Not later than 2 years after the 

9 date of enactment of the Miner Safety and Health 

10 Act of 2010, the Secretary shall promulgate final 

11 regulations that require operators, beginning on the 

12 date such regulations are issued, to provide coal 

13 miners with the maximum feasible protection from 

14 respirable dust, including coal and silica dust, that 

15 is achievable through environmental controls.’’. 

16 SEC. 505. REFRESHER TRAINING ON MINER RIGHTS AND 

17 RESPONSIBILITIES. 

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

19 825(a)(3)) is amended to read as follows: 

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

21 hours of refresher training not less frequently than 

22 once every 12 months, and such training shall in23 clude one hour of training on the statutory rights 

24 and responsibilities of miners and their representa25 tives under this Act and other applicable Federal 


emcdonald on DSK2BSOYB1PROD with BILLS
62 

•HR 5663 IH

1 and State law, pursuant to a program of instruction 

2 developed by the Secretary and delivered by an em3 ployee of the Administration or by a trainer ap4 proved by the Administration that is a party inde5 pendent from the operator;’’. 

6 (b) TIMING OF INITIAL STATUTORY RIGHTS TRAIN7 ING.—Notwithstanding section 115 of the Federal Mine 

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

9 U.S.C. 825) or the health and safety training program ap10 proved under such section, an operator shall ensure that 

11 all miners already employed by the operator on the date 

12 of enactment of this Act shall receive the one hour of stat13 utory rights and responsibilities training described in sec14 tion 115(a)(3) of such Act not later than 180 days after 

15 such date. 

16 SEC. 506. AUTHORITY TO MANDATE ADDITIONAL TRAINING. 

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

18 further amended by redesignating subsection (e) as sub19 section (f) and inserting after subsection (d) the following: 

20 ‘‘(e) AUTHORITY TO MANDATE ADDITIONAL TRAIN21 ING.— 

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

23 to issue an order requiring that an operator of a 

24 coal or other mine provide additional training be25 yond what is otherwise required by law, and speciVerDate Mar 15 2010 22:20 Jul 02, 2010 Jkt 089200 PO 00000 Frm 00062 Fmt 6652 Sfmt 6201 E:\BILLS\H5663.IH H5663

emcdonald on DSK2BSOYB1PROD with BILLS
63 

•HR 5663 IH

1 fying the time within which such training shall be 

2 provided, if the Secretary finds that— 

3 ‘‘(A)(i) a serious or fatal accident has oc4 curred at such mine; or 

5 ‘‘(ii) such mine has experienced accident 

6 and injury rates, citations for violations of this 

7 Act (including mandatory health or safety 

8 standards or regulations promulgated under 

9 this Act), citations for significant and substan10 tial violations, or withdrawal orders issued 

11 under this Act at a rate above the average for 

12 mines of similar size and type; and 

13 ‘‘(B) additional training would benefit the 

14 health and safety of miners at the mine. 

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

16 fails to provide training ordered under paragraph 

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

18 issue an order requiring such operator to cause all 

19 affected persons, except those persons referred to in 

20 section 104(c), to be withdrawn, and to be prohib21 ited from entering such mine, until such operator 

22 has provided such training.’’. 

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

24 (30 U.S.C. 814(g)(2)) is amended by striking ‘‘under 


emcdonald on DSK2BSOYB1PROD with BILLS
64 

•HR 5663 IH

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

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

3 SEC. 507. CERTIFICATION OF PERSONNEL. 

4 (a) IN GENERAL.—Title I is further amended by add5 ing at the end the following: 

6 ‘‘SEC. 118. CERTIFICATION OF PERSONNEL. 

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

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

9 mine to perform any duties or provide any training that 

10 this Act, including a mandatory health or safety standard 

11 or regulation promulgated pursuant to this Act, requires 

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

13 qualified, or otherwise approved person, shall be permitted 

14 to perform such duties or provide such training only if 

15 such person has a current certification, registration, quali16 fication, or approval to perform such duties or provide 

17 such training consistent with the requirements of this sec18 tion. 

19 ‘‘(b) ESTABLISHMENT OF CERTIFICATION REQUIRE20 MENTS AND PROCEDURES.— 

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

22 the date of enactment of the Miner Safety and 

23 Health Act of 2010, the Secretary shall issue man24 datory standards to establish— 


emcdonald on DSK2BSOYB1PROD with BILLS
65 

•HR 5663 IH

1 ‘‘(A) requirements for such certification, 

2 registration, qualification, or other approval, in3 cluding the experience, examinations, and ref4 erences that may be required as appropriate; 

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

6 procedures for obtaining and renewing such cer7 tification, registration, qualification, or other 

8 approval; and 

9 ‘‘(C) procedures and criteria for revoking 

10 such certification, registration, qualification, or 

11 other approval, including procedures that en12 sure that the Secretary responds to requests for 

13 revocation. 

14 ‘‘(2) COORDINATION WITH STATES.—In devel15 oping such standards, the Secretary shall consult 

16 with States that have miner certification programs 

17 to ensure effective coordination with existing State 

18 standards and requirements for certification. The 

19 standards required under paragraph (1) may provide 

20 that the certification, registration, qualification, or 

21 other approval of the State in which the coal or 

22 other mine is located satisfies the requirement of 

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

24 registration, qualification, or other approval is no 


emcdonald on DSK2BSOYB1PROD with BILLS
66 

•HR 5663 IH

1 less stringent than the standards established by the 

2 Secretary under paragraph (1). 

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

4 ‘‘(1) ASSESSMENT AND COLLECTION.—Begin5 ning 180 days after the date of enactment of the 

6 Miner Safety and Health Act of 2010, the Secretary 

7 shall assess and collect fees, in accordance with this 

8 subsection, from each operator for each person cer9 tified under this section. Fees shall be assessed and 

10 collected in amounts determined by the Secretary as 

11 necessary to fund the certification programs estab12 lished under this section. 

13 ‘‘(2) MINE SAFETY AND HEALTH CERTIFI14 CATION FUND.—There is established in the Treasury 

15 of the United States a separate account for the de16 posit of fees collected under this subsection to be 

17 known as the Mine Safety and Health Certification 

18 Fund. The Secretary shall deposit any fees collected 

19 pursuant to paragraph (1) into the fund. 

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

21 Health Certification Fund shall be available to the 

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

23 expenditures to carry out the certification programs 

24 established under this subsection. 


emcdonald on DSK2BSOYB1PROD with BILLS
67 

•HR 5663 IH

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

2 addition to funds appropriated under section 114, 

3 there is authorized to be appropriated from the Mine 

4 Safety and Health Certification Fund to the Assist5 ant Secretary for Mine Safety and Health for each 

6 fiscal year in which fees are collected under para7 graph (1) an amount equal to the total amount col8 lected during the previous fiscal year from fees as9 sessed pursuant to this subsection. Such amounts 

10 are authorized to remain available until expended. 

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

12 Fees authorized and collected under this subsection 

13 shall be available for obligation only to the extent 

14 and in the amount provided in advance in appropria15 tions Acts. 

16 ‘‘(d) CITATION; WITHDRAWAL ORDER.—Any oper17 ator who permits a person to perform any of the health 

18 or safety related functions described in subsection (a) 

19 without a current certification which meets the require20 ments of this section shall be considered to have com21 mitted an unwarrantable failure under section 104(d)(1), 

22 and the Secretary shall issue an order requiring that the 

23 miner be withdrawn or reassigned to duties that do not 

24 require such certification.’’. 


emcdonald on DSK2BSOYB1PROD with BILLS
68 

•HR 5663 IH

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

2 U.S.C. 878) is amended— 

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

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

6 through (C), respectively; 

7 (3) in subsection (g), by redesignating para8 graphs (1) through (4) as subparagraphs (A) 

9 through (D), respectively; and 

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

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

12 TITLE VI—ADDITIONAL MINE 

13 SAFETY PROVISIONS 

14 SEC. 601. DEFINITIONS. 

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

16 amended to read as follows: 

17 ‘‘(d) ‘operator’ means— 

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

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

20 mine; or 

21 ‘‘(B) controls such mine by making or hav22 ing the authority to make management or oper23 ational decisions that affect, directly or indi24 rectly, the health or safety at such mine; or 


emcdonald on DSK2BSOYB1PROD with BILLS
69 

•HR 5663 IH

1 ‘‘(2) any independent contractor performing 

2 services or construction at such mine;’’. 

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

4 802(e)) is amended by striking ‘‘the miners’’ and inserting 

5 ‘‘any miner’’. 

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

7 802(g)) is amended by inserting after ‘‘or other mine’’ the 

8 following: ‘‘, and includes any individual who is not cur9 rently working in a coal or other mine but would be cur10 rently working in such mine, but for an accident in such 

11 mine’’. 

12 (d) DEFINITION OF SIGNIFICANT AND SUBSTANTIAL

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

14 amended— 

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

16 the semicolon; 

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

18 the end and inserting a semicolon; 

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

20 the end and inserting ‘‘; and’’; and 

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

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

23 violation of this Act, including any mandatory health or 

24 safety standard or regulation promulgated under this Act, 

25 that is of such nature as could significantly and substanVerDate Mar 15 2010 22:20 Jul 02, 2010 Jkt 089200 PO 00000 Frm 00069 Fmt 6652 Sfmt 6201 E:\BILLS\H5663.IH H5663

emcdonald on DSK2BSOYB1PROD with BILLS
70 

•HR 5663 IH

1 tially contribute to the cause and effect of a coal or other 

2 mine safety or health hazard as described in section 

3 104(d).’’. 

4 SEC. 602. ASSISTANCE TO STATES. 

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

6 (1) in subsection (a)— 

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

8 by striking ‘‘, in coordination with the Sec9 retary of Health, Education, and Welfare and 

10 the Secretary of the Interior,’’; 

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

12 after the semicolon; 

13 (C) in paragraph (3), by striking the pe14 riod and inserting ‘‘; and’’; and 

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

16 ‘‘(4) to assist such State in developing and im17 plementing any certification program for coal or 

18 other mines required for compliance with section 

19 118.’’; and 

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

21 for fiscal year 1970, and $10,000,000 in each suc22 ceeding fiscal year’’ and inserting ‘‘$20,000,000 for 

23 each fiscal year’’. 


emcdonald on DSK2BSOYB1PROD with BILLS
71 

•HR 5663 IH

1 SEC. 603. BLACK LUNG MEDICAL REPORTS. 

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

3 901 et seq.) is amended by adding at the end the fol4 lowing: 

5 ‘‘SEC. 435. MEDICAL REPORTS. 

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

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

8 examination regarding the miner’s respiratory or pul9 monary condition shall, not later than 14 days after the 

10 miner has been examined, deliver to the claimant a com11 plete copy of the examining physician’s report. The exam12 ining physician’s report shall be in writing and shall set 

13 out in detail the examiner’s findings, including any diag14 noses and conclusions and the results of any diagnostic 

15 imaging techniques and tests that were performed on the 

16 miner.’’. 

17 TITLE VII—AMENDMENTS TO 

18 THE OCCUPATIONAL SAFETY 

19 AND HEALTH ACT 

20 SEC. 701. ENHANCED PROTECTIONS FROM RETALIATION. 

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

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

23 660(c)(1)) is amended— 

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

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

26 ‘‘discharge or cause to be discharged, or in any manVerDate Mar 15 2010 22:20 Jul 02, 2010 Jkt 089200 PO 00000 Frm 00071 Fmt 6652 Sfmt 6201 E:\BILLS\H5663.IH H5663

emcdonald on DSK2BSOYB1PROD with BILLS
72 

•HR 5663 IH

1 ner discriminate against or cause to be discriminated 

2 against, any employee because— 

3 ‘‘(A) such’’; 

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

5 the following: ‘‘this Act; 

6 ‘‘(B) such employee has’’; 

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

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

9 Congress or in any Federal or State proceeding re10 lated to safety or health; 

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

12 provision of this Act; or 

13 ‘‘(D) of the exercise’’; and 

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

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

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

17 the employer, safety and health committee involved, 

18 or employee safety and health representative in19 volved’’. 

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

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

22 paragraph (2) and inserting the following: 

23 ‘‘(2)(A) No person shall discharge, or cause to be dis24 charged, or in any manner discriminate against, or cause 

25 to be discriminated against, an employee for refusing to 


emcdonald on DSK2BSOYB1PROD with BILLS
73 

•HR 5663 IH

1 perform the employee’s duties if the employee has a rea2 sonable apprehension that performing such duties would 

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

4 health of, the employee or other employees. 

5 ‘‘(B) For purposes of subparagraph (A), the cir6 cumstances causing the employee’s good-faith belief that 

7 performing such duties would pose a safety or health haz8 ard shall be of such a nature that a reasonable person, 

9 under the circumstances confronting the employee, would 

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

11 for protection under this paragraph, the employee, when 

12 practicable, shall have communicated or attempted to com13 municate the safety or health concern to the employer and 

14 have not received from the employer a response reasonably 

15 calculated to allay such concern.’’. 

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

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

18 inserting the following: 

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

20 that the employee has been discharged, disciplined, 

21 or otherwise discriminated against by any person in 

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

23 such violation by filing a complaint with the Sec24 retary under paragraph (5). 

25 ‘‘(4) STATUTE OF LIMITATIONS.— 


emcdonald on DSK2BSOYB1PROD with BILLS
74 

•HR 5663 IH

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

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

3 later than 180 days after the later of— 

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

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

7 knows or should reasonably have known 

8 that such alleged violation occurred. 

9 ‘‘(B) REPEAT VIOLATION.—Except in 

10 cases when the employee has been discharged, 

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

14 ‘‘(5) INVESTIGATION.— 

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

16 within the time period required under para17 graph (4)(B), file a complaint with the Sec18 retary alleging a violation of paragraph (1) or 

19 (2). If the complaint alleges a prima facie case, 

20 the Secretary shall conduct an investigation of 

21 the allegations in the complaint, which— 

22 ‘‘(i) shall include— 

23 ‘‘(I) interviewing the complain24 ant; 


emcdonald on DSK2BSOYB1PROD with BILLS
75 

•HR 5663 IH

1 ‘‘(II) providing the respondent an 

2 opportunity to— 

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

5 complaint; and 

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

8 witnesses or provide evidence; 

9 and 

10 ‘‘(III) providing the complainant 

11 an opportunity to— 

12 ‘‘(aa) receive any statements 

13 or evidence provided to the Sec14 retary; 

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

17 ‘‘(cc) rebut any statements 

18 or evidence; and 

19 ‘‘(ii) may include issuing subpoenas 

20 for the purposes of such investigation. 

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

22 after the filing of the complaint, the Secretary 

23 shall— 


emcdonald on DSK2BSOYB1PROD with BILLS
76 

•HR 5663 IH

1 ‘‘(i) determine whether reasonable 

2 cause exists to believe that a violation of 

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

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

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

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

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

11 preliminary order providing relief authorized under 

12 paragraph (14) at the same time the Secretary 

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

14 novo hearing is not requested within the time period 

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

18 ‘‘(7) HEARING.— 

19 ‘‘(A) REQUEST FOR HEARING.— 

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

21 on the record before an administrative law 

22 judge may be requested— 

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


emcdonald on DSK2BSOYB1PROD with BILLS
77 

•HR 5663 IH

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

4 ‘‘(II) by the complainant within 

5 30 days after the date the complaint 

6 is dismissed without investigation by 

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

8 or 

9 ‘‘(III) by the complainant within 

10 120 days after the date of filing the 

11 complaint, if the Secretary has not 

12 issued a decision under paragraph 

13 (5)(B). 

14 ‘‘(ii) REINSTATEMENT ORDER.—The 

15 request for a hearing shall not operate to 

16 stay any preliminary reinstatement order 

17 issued under paragraph (6). 

18 ‘‘(B) PROCEDURES.— 

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

22 with rules established by the Secretary for 

23 hearings conducted by administrative law 

24 judges. 


emcdonald on DSK2BSOYB1PROD with BILLS
78 

•HR 5663 IH

1 ‘‘(ii) SUBPOENAS; PRODUCTION OF

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

4 subpoenas. The respondent or complainant 

5 may request the issuance of subpoenas 

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

8 the production of any evidence (including 

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

12 ‘‘(iii) DECISION.—The administrative 

13 law judge shall issue a decision not later 

14 than 90 days after the date on which a 

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

17 parties and the Secretary of such decision, 

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

20 judge finds that a violation of paragraph 

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

22 issue an order for relief under paragraph 

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

24 timely requested, such order shall be 


emcdonald on DSK2BSOYB1PROD with BILLS
79 

•HR 5663 IH

1 deemed a final order of the Secretary that 

2 is not subject to judicial review. 

3 ‘‘(8) ADMINISTRATIVE APPEAL.— 

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

5 days after the date of notification of a decision 

6 and order issued by an administrative law judge 

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

10 body designated by the Secretary (referred to in 

11 this paragraph as the ‘review board’). 

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

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

17 substantial evidence and the decision and order 

18 are made in accordance with applicable law. 

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

20 grants an administrative appeal, the review 

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

23 decision under review by not later than 90 days 

24 after receipt of the administrative appeal. If it 

25 is determined that a violation of paragraph (1) 


emcdonald on DSK2BSOYB1PROD with BILLS
80 

•HR 5663 IH

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

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

4 and order shall constitute final agency action 

5 with respect to the matter appealed. 

6 ‘‘(9) SETTLEMENT IN THE ADMINISTRATIVE

7 PROCESS.— 

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

9 issuance of a final order, an investigation or 

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

12 entered into by the parties. 

13 ‘‘(B) PUBLIC POLICY CONSIDERATIONS.— 

14 Neither the Secretary, an administrative law 

15 judge, nor the review board conducting a hear16 ing under this subsection shall accept a settle17 ment that contains conditions conflicting with 

18 the rights protected under this Act or that are 

19 contrary to public policy, including a restriction 

20 on a complainant’s right to future employment 

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

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


emcdonald on DSK2BSOYB1PROD with BILLS
81 

•HR 5663 IH

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

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

4 ‘‘(i) an administrative law judge has 

5 not issued a decision and order within the 

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

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

9 a decision and order within the 90-day 

10 time period required under paragraph 

11 (8)(C). 

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

14 United States district court for the district 

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

17 on the date of such alleged violation. The court 

18 shall have jurisdiction over such action without 

19 regard to the amount in controversy and to 

20 order appropriate relief under paragraph (14). 

21 Such action shall, at the request of either party 

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

23 jury. 

24 ‘‘(11) JUDICIAL REVIEW.— 


emcdonald on DSK2BSOYB1PROD with BILLS
82 

•HR 5663 IH

1 ‘‘(A) TIMELY APPEAL TO THE COURT OF

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

4 under this subsection may obtain review of such 

5 decision and order in the United States Court 

6 of Appeals for the circuit where the violation, 

7 with respect to which such final decision and 

8 order was issued, allegedly occurred or where 

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

11 shall file a petition for review not later than 60 

12 days after the final decision and order was 

13 issued. Such review shall conform to chapter 7 

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

16 shall not, unless ordered by the court, operate 

17 as a stay of the final decision and order. 

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

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

22 in any criminal or other civil proceeding. 

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

25 this subsection, the Secretary or the complainant on 


emcdonald on DSK2BSOYB1PROD with BILLS
83 

•HR 5663 IH

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

3 court for the district in which the violation was 

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

5 Secretary and the complainant file such action, the 

6 action of the Secretary shall take precedence. The 

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

9 ‘‘(13) BURDENS OF PROOF.— 

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

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

14 or a court may determine that a violation of 

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

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

18 the complainant was a contributing factor in 

19 the adverse action alleged in the complaint. 

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

23 any administrative or judicial action pursuant 

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


emcdonald on DSK2BSOYB1PROD with BILLS
84 

•HR 5663 IH

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

3 ‘‘(14) RELIEF.— 

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

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

8 court, respectively, shall have jurisdiction to 

9 order all appropriate relief, including injunctive 

10 relief, compensatory and exemplary damages, 

11 including— 

12 ‘‘(i) affirmative action to abate the 

13 violation; 

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

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

22 ‘‘(iii) compensatory and consequential 

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


emcdonald on DSK2BSOYB1PROD with BILLS
85 

•HR 5663 IH

1 ‘‘(iv) expungement of all warnings, 

2 reprimands, or derogatory references that 

3 have been placed in paper or electronic 

4 records or databases of any type relating 

5 to the actions by the complainant that 

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

8 transmission of a copy of the decision on 

9 the complaint to any person whom the 

10 complainant reasonably believes may have 

11 received such unfavorable information. 

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

13 the Secretary or an administrative law judge, 

14 review board, or court grants an order for relief 

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

18 employee against the employer— 

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

20 ‘‘(ii) costs (including expert witness 

21 fees) reasonably incurred, as determined 

22 by the Secretary, administrative law judge, 

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

25 which the order was issued. 


emcdonald on DSK2BSOYB1PROD with BILLS
86 

•HR 5663 IH

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

2 remedies provided for in this subsection may not be 

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

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

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

7 shall be construed to diminish the rights, privileges, 

8 or remedies of any employee who exercises rights 

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

10 under any collective bargaining agreement. 

11 ‘‘(17) ELECTION OF VENUE.— 

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

13 employer who is located in a State that has a 

14 State plan approved under section 18 may file 

15 a complaint alleging a violation of paragraph 

16 (1) or (2) by such employer with— 

17 ‘‘(i) the Secretary under paragraph 

18 (5); or 

19 ‘‘(ii) a State plan administrator in 

20 such State. 

21 ‘‘(B) REFERRALS.—If— 

22 ‘‘(i) the Secretary receives a complaint 

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

25 State plan administrator for resolution; or 


emcdonald on DSK2BSOYB1PROD with BILLS
87 

•HR 5663 IH

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

4 shall not refer such complaint to the Sec5 retary for resolution.’’. 

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

7 such Act (29 U.S.C. 666(j)) is amended by inserting be8 fore the period the following: ‘‘, including the history of 

9 violations under section 11(c)’’. 

10 SEC. 702. VICTIMS’ RIGHTS. 

11 The Occupational Safety and Health Act of 1970 is 

12 amended by inserting after section 9 (29 U.S.C. 658) the 

13 following: 

14 ‘‘SEC. 9A. VICTIMS’ RIGHTS. 

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

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

17 with respect to an inspection or investigation conducted 

18 under section 8 to— 

19 ‘‘(1) meet with the Secretary regarding the in20 spection or investigation conducted under such sec21 tion before the Secretary’s decision to issue a cita22 tion or take no action; 

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

24 or report, issued as a result of such inspection or inVerDate Mar 15 2010 22:20 Jul 02, 2010 Jkt 089200 PO 00000 Frm 00087 Fmt 6652 Sfmt 6201 E:\BILLS\H5663.IH H5663

emcdonald on DSK2BSOYB1PROD with BILLS
88 

•HR 5663 IH

1 vestigation, at the same time as the employer re2 ceives such citation or report; 

3 ‘‘(3) be informed of any notice of contest or ad4 dition of parties to the proceedings filed under sec5 tion 10(c); and 

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

7 time or any proceedings, service of pleadings, and 

8 other relevant documents, and an explanation of the 

9 rights of the employer, employee and employee rep10 resentative, and victim to participate in proceedings 

11 conducted under section 10(c). 

12 ‘‘(b) RIGHTS BEFORE THE COMMISSION.—Upon re13 quest, a victim or representative of a victim shall be af14 forded the right with respect to a work-related bodily in15 jury or death to— 

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

17 proceeding before the Commission; 

18 ‘‘(2) receive pleadings and any decisions relat19 ing to the proceedings; and 

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

21 make a statement in accordance with the rules pre22 scribed by the Commission. 

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

24 into an agreement to withdraw or modify a citation issued 

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


emcdonald on DSK2BSOYB1PROD with BILLS
89 

•HR 5663 IH

1 under section 8, the Secretary shall notify a victim or rep2 resentative of a victim and provide the victim or represent3 ative of a victim with an opportunity to appear and make 

4 a statement before the parties conducting settlement nego5 tiations. In lieu of an appearance, the victim or represent6 ative of the victim may elect to submit a letter to the Sec7 retary and the parties. 

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

9 establish procedures— 

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

11 section; and 

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

13 denial of such a right. 

14 ‘‘(e) COMMISSION PROCEDURES AND CONSIDER15 ATIONS.—The Commission shall— 

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

17 of victims to be heard in proceedings before the 

18 Commission; and 

19 ‘‘(2) in rendering any decision, provide due con20 sideration to any statement or information provided 

21 by any victim before the Commission. 

22 ‘‘(f) FAMILY LIAISONS.—The Secretary shall des23 ignate at least 1 employee at each area office of the Occu24 pational Safety and Health Administration to serve as a 

25 family liaison to— 


emcdonald on DSK2BSOYB1PROD with BILLS
90 

•HR 5663 IH

1 ‘‘(1) keep victims informed of the status of in2 vestigations, enforcement actions, and settlement ne3 gotiations; and 

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

5 under this section. 

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

7 means— 

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

9 who has sustained a work-related injury or illness 

10 that is the subject of an inspection or investigation 

11 conducted under section 8; or 

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

13 the Secretary) of a victim described in paragraph 

14 (1), if— 

15 ‘‘(A) the victim dies as a result of a inci16 dent that is the subject of an inspection or in17 vestigation conducted under section 8; or 

18 ‘‘(B) the victim sustains a work-related in19 jury or illness that is the subject of an inspec20 tion or investigation conducted under section 8, 

21 and the victim because of incapacity cannot rea22 sonably exercise the rights under this section.’’. 


emcdonald on DSK2BSOYB1PROD with BILLS
91 

•HR 5663 IH

1 SEC. 703. CORRECTION OF SERIOUS, WILLFUL, OR RE2 PEATED VIOLATIONS PENDING CONTEST AND 

3 PROCEDURES FOR A STAY. 

4 Section 10 of the Occupational Safety and Health Act 

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

6 the following: 

7 ‘‘(d) CORRECTION OF SERIOUS, WILLFUL, OR RE8 PEATED VIOLATIONS PENDING CONTEST AND PROCE9 DURES FOR A STAY.— 

10 ‘‘(1) PERIOD PERMITTED FOR CORRECTION OF

11 SERIOUS, WILLFUL, OR REPEATED VIOLATIONS.— 

12 For each violation which the Secretary designates as 

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

14 the correction of the violation shall begin to run 

15 upon receipt of the citation. 

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

17 filing of a notice of contest by an employer— 

18 ‘‘(A) shall not operate as a stay of the pe19 riod for correction of a violation designated as 

20 serious, willful, or repeated; and 

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

22 for correction of a violation not designated by 

23 the Secretary as serious, willful, or repeated. 

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

25 STAYS.— 


emcdonald on DSK2BSOYB1PROD with BILLS
92 

•HR 5663 IH

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

2 may file with the Commission a motion to stay 

3 a period for the correction of a violation des4 ignated as serious, willful, or repeated. 

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

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

7 filed under subparagraph (A), the Commission 

8 shall consider whether— 

9 ‘‘(i) the employer has demonstrated a 

10 substantial likelihood of success on its con11 test to the citation; 

12 ‘‘(ii) the employer will suffer irrep13 arable harm absent a stay; and 

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

15 health and safety of workers. 

16 ‘‘(C) RULES OF PROCEDURE.—The Com17 mission shall develop rules of procedure for con18 ducting a hearing on a motion filed under sub19 paragraph (A) on an expedited basis. At a min20 imum, such rules shall provide: 

21 ‘‘(i) That a hearing before an admin22 istrative law judge shall occur not later 

23 than 15 days following the filing of the 

24 motion for a stay (unless extended at the 

25 request of the employer), and shall provide 


emcdonald on DSK2BSOYB1PROD with BILLS
93 

•HR 5663 IH

1 for a decision on the motion not later than 

2 15 days following the hearing (unless ex3 tended at the request of the employer). 

4 ‘‘(ii) That a decision of an administra5 tive law judge on a motion for stay is ren6 dered on a timely basis. 

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

8 a decision issued by an administrative law 

9 judge regarding the stay, such party has 

10 the right to file an objection with the Com11 mission not later than 5 days after receipt 

12 of the administrative law judge’s decision. 

13 Within 10 days after receipt of the objec14 tion, a Commissioner, if a quorum is seat15 ed pursuant to section 12(f), shall decide 

16 whether to grant review of the objection. 

17 If, within 10 days after receipt of the ob18 jection, no decision is made on whether to 

19 review the decision of the administrative 

20 law judge, the Commission declines to re21 view such decision, or no quorum is seated, 

22 the decision of the administrative law 

23 judge shall become a final order of the 

24 Commission. If the Commission grants re25 view of the objection, the Commission shall 


emcdonald on DSK2BSOYB1PROD with BILLS
94 

•HR 5663 IH

1 issue a decision regarding the stay not 

2 later than 30 days after receipt of the ob3 jection. If the Commission fails to issue 

4 such decision within 30 days, the decision 

5 of the administrative law judge shall be6 come a final order of the Commission. 

7 ‘‘(iv) For notification to employees or 

8 representatives of affected employees of re9 quests for such hearings and shall provide 

10 affected employees or representatives of af11 fected employees an opportunity to partici12 pate as parties to such hearings.’’. 

13 SEC. 704. CONFORMING AMENDMENTS. 

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

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

16 amended to read as follows: 

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

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

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

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

21 has not been issued by the Commission under section 

22 10(d)) may be assessed a civil penalty of not more than 

23 $7,000 for each day during which such failure or violation 

24 continues. Any employer who fails to correct any other vio25 lation for which a citation has been issued under section 


emcdonald on DSK2BSOYB1PROD with BILLS
95 

•HR 5663 IH

1 9(a) of this title within the period permitted for its correc2 tion (which period shall not begin to run until the date 

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

4 review proceeding under section 10 initiated by the em5 ployer in good faith and not solely for delay of avoidance 

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

7 than $7,000 for each day during which such failure or vio8 lation continues.’’. 

9 SEC. 705. CIVIL PENALTIES. 

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

11 Safety and Health Act of 1970 (29 U.S.C. 666) is amend12 ed— 

13 (1) in subsection (a)— 

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

15 ‘‘$120,000’’; 

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

17 ‘‘$8,000’’; and 

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

19 determining whether a violation is repeated, the 

20 Secretary shall consider the employer’s history 

21 of violations under this Act and under State oc22 cupational safety and health plans established 

23 under section 18. If such a willful or repeated 

24 violation caused or contributed to the death of 

25 an employee, such civil penalty amounts shall 


emcdonald on DSK2BSOYB1PROD with BILLS
96 

•HR 5663 IH

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

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

3 for each such violation, except that for an em4 ployer with 25 or fewer employees such penalty 

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

6 violation.’’; 

7 (2) in subsection (b)— 

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

9 ‘‘$12,000’’; and 

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

11 such a violation caused or contributed to the 

12 death of an employee, such civil penalty 

13 amounts shall be increased to not more than 

14 $50,000 for each such violation, but not less 

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

16 that for an employer with 25 or fewer employ17 ees such penalty shall not be less than $10,000 

18 for each such violation.’’; 

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

20 inserting ‘‘$12,000’’; 

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

22 ‘‘$7,000’’ each place it occurs and inserting 

23 ‘‘$12,000’’; 

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

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


emcdonald on DSK2BSOYB1PROD with BILLS
97 

•HR 5663 IH

1 (6) in subsection (j) (as redesignated by para2 graph (5)), by striking ‘‘$7,000’’ and inserting 

3 ‘‘$12,000;’’. 

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

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

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

7 penalties shall be adjusted by the Secretary at least once 

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

9 account for the percentage increase or decrease in the 

10 Consumer Price Index for all urban consumers during 

11 such period.’’. 

12 SEC. 706. CRIMINAL PENALTIES. 

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

14 amended by section 705) is further amended— 

15 (1) by amending subsection (f) to read as fol16 lows: 

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

18 standard, rule, or order promulgated under section 6 of 

19 this Act, or of any regulation prescribed under this Act, 

20 and that violation caused or contributed to the death of 

21 any employee, shall, upon conviction, be punished by a fine 

22 in accordance with title 18, United States Code, or by im23 prisonment for not more than 10 years, or both, except 

24 that if the conviction is for a violation committed after 

25 a first conviction of such person under this subsection or 


emcdonald on DSK2BSOYB1PROD with BILLS
98 

•HR 5663 IH

1 subsection (i), punishment shall be by a fine in accordance 

2 title 18, United States Code, or by imprisonment for not 

3 more than 20 years, or by both. 

4 ‘‘(2) For the purpose of this subsection, the term ‘em5 ployer’ means, in addition to the definition contained in 

6 section 3 of this Act, any officer or director.’’; 

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

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

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

10 with title 18, United States Code, or by imprison11 ment for not more than 2 years,’’; 

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

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

14 more than six months,’’ and inserting ‘‘fine in ac15 cordance with title 18, United States Code, or by 

16 imprisonment for not more than 5 years,’’; 

17 (4) by redesignating subsections (j) through 

18 (m) as subsections (k) through (n), respectively; and 

19 (5) by inserting after subsection (i) the fol20 lowing: 

21 ‘‘(j)(1) Any employer who knowingly violates any 

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

23 any regulation prescribed under this Act, and that viola24 tion causes or contributes to serious bodily harm to any 

25 employee but does not cause death to any employee, shall, 


emcdonald on DSK2BSOYB1PROD with BILLS
99 

•HR 5663 IH

1 upon conviction, be punished by a fine in accordance with 

2 title 18, United States Code, or by imprisonment for not 

3 more than 5 years, or by both, except that if the conviction 

4 is for a violation committed after a first conviction of such 

5 person under this subsection or subsection (e), punishment 

6 shall be by a fine in accordance with title 18, United 

7 States Code, or by imprisonment for not more than 10 

8 years, or by both. 

9 ‘‘(2) For the purpose of this subsection, the term ‘em10 ployer’ means, in addition to the definition contained in 

11 section 3 of this Act, any officer or director. 

12 ‘‘(3) For purposes of this subsection, the term ‘seri13 ous bodily harm’ means bodily injury or illness that in14 volves— 

15 ‘‘(A) a substantial risk of death; 

16 ‘‘(B) protracted unconsciousness; 

17 ‘‘(C) protracted and obvious physical disfigure18 ment; or 

19 ‘‘(D) protracted loss or impairment, either tem20 porary or permanent, of the function of a bodily 

21 member, organ, or mental faculty.’’. 

22 (b) JURISDICTION FOR PROSECUTION UNDER STATE

23 AND LOCAL CRIMINAL LAWS.—Section 17 (29 U.S.C. 

24 666) (as amended by section 705 and subsection (a)) is 

25 further amended by adding at the end the following: 


emcdonald on DSK2BSOYB1PROD with BILLS
100 

•HR 5663 IH

1 ‘‘(o) Nothing in this Act shall preclude a State or 

2 local law enforcement agency from conducting criminal 

3 prosecutions in accordance with the laws of such State or 

4 locality.’’. 

5 SEC. 707. PENALTIES. 

6 Section 17(n) (as redesignated by section 706(a)(4)) 

7 (29 U.S.C. 666(n)) is amended by adding at the end the 

8 following: ‘‘Pre-final order interest on such penalties shall 

9 begin to accrue on the date the party contests a citation 

10 issued under this Act, and shall end upon the issuance 

11 of the final order. Such pre-final order interest shall be 

12 calculated at the current underpayment rate determined 

13 by the Secretary of the Treasury pursuant to section 6621 

14 of the Internal Revenue Code of 1986, and shall be com15 pounded daily. Post-final order interest shall begin to ac16 crue 30 days after the date a final order of the Commis17 sion or the court is issued, and shall be charged at the 

18 rate of 8 percent per year.’’. 

19 SEC. 708. EFFECTIVE DATE. 

20 (a) GENERAL RULE.—Except as provided for in sub21 section (b), this title and the amendments made by this 

22 title shall take effect not later than 90 days after the date 

23 of the enactment of this Act. 

24 (b) EXCEPTION FOR STATES AND POLITICAL SUB25 DIVISIONS.—A State that has a State plan approved under 


emcdonald on DSK2BSOYB1PROD with BILLS
101 

•HR 5663 IH

1 section 18 (29 U.S.C. 667) shall amend its State plan to 

2 conform with the requirements of this Act and the amend3 ments made by this Act not later than 12 months after 

4 the date of the enactment of this Act. The Secretary of 

5 Labor may extend the period for a State to make such 

6 amendments to its State plan by not more than 12 

7 months, if the State’s legislature is not in session during 

8 the 12-month period beginning with the date of the enact9 ment of this Act. Such amendments to the State plan shall 

10 take effect not later than 90 days after the adoption of 

11 such amendments by such State. 

Æ 


emcdonald on DSK2BSOYB1PROD with BILLS