S 153
112th CONGRESS
1st Session
S. 153
To improve compliance with mine and occupational safety and
health laws, empower workers to raise safety concerns, prevent future
mine and other workplace tragedies, establish rights of families of
victims of workplace accidents, and for other purposes.
IN THE SENATE OF THE UNITED STATES
January 25 (legislative day, January 5), 2011
Mr. ROCKEFELLER (for himself, Mr. HARKIN, Mrs. MURRAY, and Mr. MANCHIN)
introduced the following bill; which was read twice and referred to
the Committee on Health, Education, Labor, and Pensions
A BILL
To improve compliance with mine and occupational safety and
health laws, empower workers to raise safety concerns, prevent future
mine and other workplace tragedies, establish rights of families of
victims of workplace accidents, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `Robert C. Byrd Mine and
Workplace Safety and Health Act of 2011'.
(b) Table of Contents- The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
TITLE I--ADDITIONAL INSPECTION AND INVESTIGATION AUTHORITY
Sec. 101. Independent accident investigations.
Sec. 102. Subpoena authority and miner rights during inspections and
investigations.
Sec. 103. Designation of miner representative.
Sec. 104. Additional amendments relating to inspections, investigations,
and recordkeeping.
TITLE II--ENHANCED ENFORCEMENT AUTHORITY
Sec. 201. Significant and substantial violations.
Sec. 202. A pattern of recurring noncompliance or accidents.
Sec. 203. Injunctive authority.
Sec. 204. Revocation of approval of plans.
Sec. 205. Challenging a decision to approve, modify, or revoke a coal
or other mine plan.
TITLE III--PENALTIES
Sec. 301. Civil penalties.
Sec. 302. Civil and criminal liability of officers, directors, and
agents.
Sec. 303. Criminal penalties.
Sec. 304. Commission review of penalty assessments.
Sec. 305. Delinquent payments and prejudgment interest.
TITLE IV--WORKER RIGHTS AND PROTECTIONS
Sec. 401. Protection from retaliation.
Sec. 402. Protection from loss of pay.
TITLE V--MODERNIZING HEALTH AND SAFETY STANDARDS
Sec. 501. Pre-shift review of mine conditions.
Sec. 502. Rock dust standards.
Sec. 503. Atmospheric monitoring systems.
Sec. 504. Technology related to respirable dust.
Sec. 505. Refresher training on miner rights and responsibilities.
Sec. 506. Authority to mandate additional training.
Sec. 507. Certification of personnel.
TITLE VI--ADDITIONAL MINE SAFETY PROVISIONS
Sec. 602. Assistance to States.
Sec. 603. Black lung medical reports.
Sec. 604. Study on workforce needs.
Sec. 605. Mine Safety and Health Administration strategic planning.
TITLE VII--AMENDMENTS TO THE OCCUPATIONAL SAFETY AND HEALTH ACT
Sec. 701. Enhanced protections from retaliation.
Sec. 702. Victims' rights.
Sec. 703. Correction of serious, willful, or repeated violations pending
contest and procedures for a stay.
Sec. 704. Conforming amendments.
Sec. 705. Civil penalties.
Sec. 706. Criminal penalties.
Sec. 708. Effective date.
SEC. 2. REFERENCES.
Except in title VII and as otherwise expressly provided, whenever in
this Act an amendment is expressed as an amendment to a section or other
provision, the reference shall be considered to be made to a section
or other provision of the Federal Mine Safety and Health Act of 1977
(30 U.S.C. 801 et seq.).
TITLE I--ADDITIONAL INSPECTION AND INVESTIGATION AUTHORITY
SEC. 101. INDEPENDENT ACCIDENT INVESTIGATIONS.
(a) In General- Section 103(b) (30 U.S.C. 813(b)) is amended by striking
`(b) For the purpose' and inserting the following:
`(b) Accident Investigations-
`(1) IN GENERAL- For all accident investigations under this Act, the
Secretary shall--
`(A) determine why the accident occurred;
`(B) determine whether there were violations of law, mandatory health
and safety standards, or other requirements, and if such violations
are found, issue citations and penalties, and in cases involving
possible criminal actions, refer such matters to the Attorney General;
and
`(C) make recommendations to avoid any recurrence.
`(2) INDEPENDENT ACCIDENT INVESTIGATIONS-
`(A) IN GENERAL- There shall be, in addition to an accident investigation
under paragraph (1), an independent investigation by an independent
investigation panel (referred to in this subsection as the `Panel')
appointed under subparagraph (B) for--
`(i) any accident involving 3 or more deaths; or
`(ii) any accident that is of such severity or scale for potential
or actual harm that, in the opinion of the Secretary of Health
and Human Services, the accident merits an independent investigation.
`(i) IN GENERAL- As soon as practicable after an accident described
in subparagraph (A), the Secretary of Health and Human Services
shall appoint 5 members for the Panel required under this paragraph
from among individuals who have expertise in accident investigations,
mine engineering, or mine safety and health that is relevant to
the particular investigation.
`(ii) CHAIRPERSON- The Panel shall include, and be chaired by,
a representative from the Office of Mine Safety and Health Research,
of the National Institute for Occupational Safety and Health (referred
to in this subsection as NIOSH).
`(iii) CONFLICTS OF INTEREST- Panel members, and staff and consultants
assisting the Panel with an investigation, shall be free from
conflicts of interest with regard to the investigation, and be
subject to the same standards of ethical conduct for persons employed
by the Secretary.
`(iv) COMPOSITION- The Secretary of Health and Human Services
shall appoint as members of the Panel--
`(I) 1 operator of a mine or individual representing mine operators,
and
`(II) 1 member of a labor organization or other representative
of miners,
and may not appoint more than 1 of either such individuals as
members of the Panel.
`(v) STAFF AND EXPENSES- The Director of NIOSH shall designate
NIOSH staff to facilitate the work of the Panel. The Director
may accept as staff personnel on detail from other Federal agencies
or re-employ annuitants. The detail of personnel under this paragraph
may be on a non-reimbursable basis, and such detail shall be without
interruption or loss of civil service status or privilege. The
Director of NIOSH shall have the authority to procure on behalf
of the Panel such materials, supplies or services, including technical
experts, as requested in writing by a majority of the Panel.
`(vi) COMPENSATION AND TRAVEL- All members of the Panel who are
officers or employees of the United States shall serve without
compensation in addition to that received for their services as
officers or employees of the United States. Each Panel member
who is not an officer or employee of the United States shall be
compensated at a rate equal to the daily equivalent of the annual
rate of basic pay prescribed for level IV of the Executive Schedule
under section 5315 of title 5, United States Code, for each day
(including travel time) during which such member is engaged in
the performance of duties of the Panel. The members of the Panel
shall be allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies under
subchapter 1 of chapter 57 of title 5, United States Code, while
away from their homes or regular places of business in the performance
of services for the Panel.
`(C) DUTIES- The Panel shall--
`(i) assess and identify any factors that caused the accident,
including deficiencies in safety management systems, regulations,
enforcement, industry practices or guidelines, or organizational
failures;
`(ii) identify and evaluate any contributing actions or inactions
of--
`(II) any contractors or other persons engaged in mining-related
functions at the site;
`(III) any State agency with oversight responsibilities;
`(IV) any agency or office within the Department of Labor; or
`(V) any other person or entity (including equipment manufacturers);
`(iii) review the determinations and recommendations by the Secretary
under paragraph (1);
`(iv) prepare a report that--
`(I) includes the findings regarding the causal factors described
in clauses (i) and (ii);
`(II) identifies any strengths and weaknesses in the Secretary's
investigation; and
`(III) includes recommendations, including interim recommendations
where appropriate, to industry, labor organizations, State and
Federal agencies, or Congress, regarding policy, regulatory,
enforcement, administrative, or other changes, which in the
judgment of the Panel, would prevent a recurrence at other mines;
and
`(v) publish such findings and recommendations (excluding any
portions which the Attorney General requests that the Secretary
withhold in relation to a criminal referral) and hold public meetings
to inform the mining community and families of affected miners
of the Panel's findings and recommendations.
`(D) HEARINGS; APPLICABILITY OF CERTAIN FEDERAL LAW- The Panel shall
have the authority to conduct public hearings or meetings, but shall
not be subject to the Federal Advisory Committee Act. All public
hearings of the Panel shall be subject to the requirements under
section 552b of title 5, United States Code.
`(E) MEMORANDUM OF UNDERSTANDING- Not later than 90 days after the
date of enactment of the Robert C. Byrd Mine and Workplace Safety
and Health Act of 2011, the Secretary of Labor and the Secretary
of Health and Human Services shall conclude and publically issue
a memorandum of understanding that--
`(i) outlines administrative arrangements which will facilitate
a coordination of efforts between the Secretary of Labor and the
Panel, ensures that the Secretary's investigation under paragraph
(1) is not delayed or otherwise compromised by the activities
of the Panel, and establishes a process to resolve any conflicts
between such investigations;
`(ii) ensures that Panel members or staff will be able to participate
in investigation activities (such as mine inspections and interviews)
related to the Secretary of Labor's investigation and will have
full access to documents that are assembled or produced in such
investigation, and ensures that the Secretary of Labor will make
all of the authority available to such Secretary under this section,
including subpoena authority, to obtain information and witnesses
which may be requested by such Panel; and
`(iii) establishes such other arrangements as are necessary to
implement this paragraph.
`(F) PROCEDURES- Not later than 90 days after the date of enactment
of the Robert C. Byrd Mine and Workplace Safety and Health Act of
2011, the Secretary of Health and Human Services shall establish
procedures to ensure the consistency and effectiveness of Panel
investigations. In establishing such procedures, such Secretary
shall consult with independent safety investigation agencies, sectors
of the mining industry, representatives of miners, families of miners
involved in fatal accidents, State mine safety agencies, and mine
rescue organizations. Such procedures shall include--
`(i) authority for the Panel to use evidence, samples, interviews,
data, analyses, findings, or other information gathered by the
Secretary of Labor, as the Panel determines valid;
`(ii) provisions to ensure confidentiality if requested by any
witness, to the extent permitted by law, and prevent conflicts
of interest in witness representation; and
`(iii) provisions for preservation of public access to the Panel's
records through the Secretary of Health and Human Services.
`(G) AUTHORIZATION OF APPROPRIATIONS- There is authorized to be
appropriated to carry out this subsection such sums as may be necessary.
`(3) POWERS AND PROCESSES- For the purpose'.
(b) Reporting Requirements- Section 511(a) (30 U.S.C. 958(a)) is amended
by inserting after `501,' the following: `the status of implementation
of recommendations from each independent investigation panel under section
103(b) received in the preceding 5 years.'.
SEC. 102. SUBPOENA AUTHORITY AND MINER RIGHTS DURING INSPECTIONS AND
INVESTIGATIONS.
Section 103(b) (as amended by section 101) (30 U.S.C. 813(b)) is further
amended by adding at the end the following:
`(4) ADDITIONAL POWERS- For the purpose of enabling the Secretary
to perform any of the functions under this Act, the Secretary or the
Secretary's designee, may sign and issue subpoenas for the attendance
and testimony of witnesses and the production of information, including
all relevant data, papers, books, documents, and items of physical
evidence, and administer oaths. Witnesses summoned shall be paid the
same fees that are paid witnesses in the courts of the United States.
In carrying out inspections and investigations under this subsection,
authorized representatives of the Secretary and attorneys representing
the Secretary are authorized to question any individual privately.
Under this section, any individual who is willing to speak with or
provide a statement to such authorized representatives or attorneys
representing the Secretary may do so without the presence, involvement,
or knowledge of the operator or the operator's agents or attorneys.
The Secretary shall keep the identity of an individual providing such
a statement confidential to the extent permitted by law. Nothing in
this paragraph prevents any individual from being represented by that
individual's personal attorney.'.
SEC. 103. DESIGNATION OF MINER REPRESENTATIVE.
Section 103(f) (30 U.S.C. 813(f)) is amended by inserting before the
last sentence the following: `If any miner is entrapped or otherwise
prevented as the result of an accident in such mine from designating
such a representative directly, such miner's closest relative may act
on behalf of such miner in designating such a representative. If any
miner is not currently working in such mine as the result of an accident
in such mine, but would be currently working in such mine but for such
accident, such miner may designate such a representative.'.
SEC. 104. ADDITIONAL AMENDMENTS RELATING TO INSPECTIONS, INVESTIGATIONS,
AND RECORDKEEPING.
(a) Hours of Inspections- Section 103(a) (30 U.S.C. 813(a)) is amended
by inserting after the third sentence the following: `Such inspections
shall be conducted during the various shifts and days of the week during
which miners are normally present in the mine to ensure that the protections
of this Act are afforded to all miners working all shifts. If an inspection
of a working section of a mine occurs during a shift on which a mechanized
mining unit is producing, or customarily produces, coal on such section,
then such inspection shall be conducted while such unit is producing
coal at a rate that is reasonably consistent with the average rate of
production at the mine during the previous quarter.'.
(b) Conflict of Interest in the Representation of Miners- Section 103(a)
(30 U.S.C. 813(a)) is further amended by adding at the end the following:
`During inspections and investigations under this section, and during
any litigation under this Act, no attorney shall represent or purport
to represent both the operator of a coal or other mine and any other
individual, unless such individual has knowingly and voluntarily waived
all actual and reasonably foreseeable conflicts of interest resulting
from such representation. The Secretary is authorized to take such actions
as the Secretary considers appropriate to ascertain whether such individual
has knowingly and voluntarily waived all such conflicts of interest.
If the Secretary finds that such an individual cannot be represented
adequately by such an attorney due to such conflicts of interest, the
Secretary may petition the appropriate United States District Court
which shall have jurisdiction to disqualify such attorney as counsel
to such individual in the matter. The Secretary may make such a motion
as part of an ongoing related civil action or as a miscellaneous action.'.
(c) Injury and Illness Reporting- Section 103(d) (30 U.S.C. 813(d))
is amended by striking the last sentence and inserting the following:
`The records to be kept and made available by the operator of the mine
shall include man-hours worked and occupational injuries and illnesses,
and shall be maintained separately for each mine and be reported at
a frequency determined by the Secretary, but at least annually. Operators
shall be responsible for reporting on all miners working at such mine
regardless of their employer, except that independent contractors (within
the meaning of section 3(d)) shall only be responsible for reporting
on miners in their employ or under their direction or authority.'.
(d) Orders Following an Accident- Section 103(k) (30 U.S.C. 813(k))
is amended by striking `, when present,'.
(e) Electronic Database- Section 103 (30 U.S.C. 813) is amended by adding
at the end the following:
`(l) The Secretary shall establish and maintain a publicly available
electronic database containing current and historical data on the safety
records of each coal or other mine. Such database shall be user-friendly
and searchable, and shall have the ability to provide aggregate data
for each mine, each operator, and each controller of a mine and the
ability to compare safety data between mines, operators, and controllers.'.
(f) Outside Experts in Investigations- Section 112 (30 U.S.C. 822) is
amended--
(1) by striking `Except as provided' and inserting the following:
`(a) Civil Litigation Representation- Except as provided'; and
(2) by adding at the end the following:
`(b) Mining Experts in Investigations- The Attorney General shall designate
1 or more full-time employees with expertise in the mining industry
to coordinate with the Department of Labor and assist United States
attorneys in the investigation and prosecution of criminal violations
under this Act.'.
TITLE II--ENHANCED ENFORCEMENT AUTHORITY
SEC. 201. SIGNIFICANT AND SUBSTANTIAL VIOLATIONS.
Section 104(d)(1) (30 U.S.C. 814(d)(1)) is amended--
(1) in the first sentence--
(A) by striking `any mandatory health or safety standard' and inserting
`any provision of this Act, including any mandatory health or safety
standard or regulation promulgated under this Act'; and
(B) by striking `such mandatory health or safety standards' and
inserting `such provisions, regulations, or mandatory health or
safety standards';
(2) in the second sentence, by striking `any mandatory health or safety
standard' and inserting `any provision of this Act, including any
mandatory health or safety standard or regulation promulgated under
this Act,'; and
(3) by inserting after the first sentence the following: `For purposes
of this Act, a violation of a provision of this Act, including any
mandatory health or safety standard or regulation promulgated under
this Act, is of such nature as could significantly and substantially
contribute to the cause and effect of a safety or health hazard if
there is a reasonable possibility that such violation could result
in injury, illness, or death.'.
SEC. 202. A PATTERN OF RECURRING NONCOMPLIANCE OR ACCIDENTS.
Section 104(e) (30 U.S.C. 814(e)) is amended to read as follows:
`(e) Pattern of Recurring Noncompliance or Accidents-
`(A) IN GENERAL- For purposes of this subsection, an operator of
a coal or other mine shall be in pattern status if the operator
has, as determined based on the regulations promulgated under paragraph
(8)--
`(I) citations for significant and substantial violations;
`(II) citations and withdrawal orders issued for unwarrantable
failure to comply with mandatory health and safety standards
under section 104(d);
`(III) citations for flagrant violations within the meaning
of section 110(b);
`(IV) withdrawal orders issued under any other section of this
Act; or
`(V) accidents, injuries, or illnesses; or
`(ii) a pattern consisting of any combination of citations, orders,
accidents, injuries, or illnesses described in subclauses (I)
through (V).
`(B) MITIGATING CIRCUMSTANCES- Notwithstanding subparagraph (A),
if the Secretary, after conducting an assessment of a coal or other
mine that otherwise qualifies for pattern status, certifies that
there are mitigating circumstances wherein the operator has eliminated
any elevated risk to the health or safety of miners and has taken
sufficient measures to ensure such elevated risk will not recur,
the Secretary may deem such mine to not be in pattern status under
this subsection. The Secretary shall issue any such certification
of such mitigating circumstances that would preclude the placement
of a mine in pattern status as a written finding, which shall, not
later than 10 days after the certification is made, be--
`(i) published in the Federal Register; and
`(ii) transmitted to the Committee on Education and the Workforce
of the House of Representatives and the Committee on Health, Education,
Labor, and Pensions of the Senate.
`(2) ACTIONS FOLLOWING PLACEMENT OF MINE IN PATTERN STATUS- For any
coal or other mine that is in pattern status, the Secretary shall--
`(A) notify the operator of such mine that the mine is being placed
in pattern status;
`(B) issue an order requiring such operator to cause all persons
to be withdrawn from such mine, except those persons referred to
in subsection (c) or authorized by an order of the Secretary issued
under this subsection;
`(C) issue a remediation order described in paragraph (3) to such
operator; and
`(D) require that the number of regular inspections of such mine
required under section 103 be increased to 8 per year for an underground
mine and 4 per year for a surface mine while the mine is in pattern
status.
Notice advising operators that they face potential placement in pattern
status shall not be a requirement for issuing a withdrawal order to
operators under this subsection.
`(A) IN GENERAL- A remediation order issued to an operator under
paragraph (2)(C) may require the operator to carry out one or more
of the following requirements, pursuant to a timetable for commencing
and completing such actions or as a condition of miners reentering
the mine:
`(i) Provide specified training, including training not otherwise
required under this Act.
`(ii) Institute and implement an effective health and safety management
program approved by the Secretary, including--
`(I) the employment of safety professionals, certified persons,
and adequate numbers of personnel for the mine, as may be required
by the Secretary;
`(II) specific inspection, recordkeeping, reporting and other
requirements for the mine as the Secretary may establish; and
`(III) other requirements to ensure compliance and to protect
the health and safety of miners or prevent accidents or injuries
as the Secretary may determine are necessary.
`(iii) Facilitate any effort by the Secretary to communicate directly
with miners employed at the mine outside the presence of the mine
operators or its agents, for the purpose of obtaining information
about mine conditions, health and safety practices, and advising
miners of their rights under this Act.
`(B) MODIFICATION OF AND FAILURE TO COMPLY WITH REMEDIATION ORDER-
The Secretary may modify the remediation order, as necessary, to
protect the health and safety of miners. If the mine operator fails
to fully comply with the remediation order during the time a mine
is in pattern status, the Secretary shall reinstate the withdrawal
order under paragraph (2)(B).
`(C) EXTENSION OF DEADLINES- An extension of a deadline under the
remediation order may be granted on a temporary basis and only upon
a showing that the operator took all feasible measures to comply
with the order and only to the extent that the operator's failure
to comply is beyond the control of the operator.
`(4) CONDITIONS FOR LIFTING WITHDRAWAL ORDER- A withdrawal order issued
under paragraph (2)(B) shall not be lifted until the Secretary verifies
that--
`(A) any and all violations or other conditions in the mine identified
in the remediation order have been or are being fully abated or
corrected as outlined in the remediation order; and
`(B) the operator has completed any other actions under the remediation
order that are required for reopening the mine.
`(5) PERFORMANCE EVALUATION-
`(A) PERFORMANCE BENCHMARKS- The Secretary shall evaluate the performance
of each operator whose mine is in pattern status every 90 days during
which the mine is producing and determine if, for such 90-day period--
`(i) the operator's rate of citations for significant and substantial
violations--
`(I) are, on average, in the top performing 35th percentile
of such rates, respectively, for all mines of similar size and
type; or
`(II) have been reduced by 70 percent since such mine was placed
on pattern status;
`(ii) the operator's accident and injury rates are, on average,
in the top performing 35th percentile of such rates, respectively,
for all mines of similar size and type; and
`(iii) no citation or withdrawal order for a violation under section
104(d), no withdrawal order for imminent danger under section
107 arising from a significant and substantial violation, and
no flagrant violations within the meaning of section 110(b), were
issued for such mine.
`(B) REISSUANCE OF WITHDRAWAL ORDERS- If an operator being evaluated
fails to achieve the performance benchmarks described in subparagraph
(A), the Secretary may reissue a withdrawal order under paragraph
(2)(B) to remedy any recurring conditions that led to pattern status
under this subsection, and may modify the remediation order, as
necessary, to protect the health and safety of miners.
`(6) TERMINATION OF PATTERN STATUS-
`(A) PERFORMANCE BENCHMARKS- The Secretary shall remove an operator
of a coal or other mine from pattern status if, for a 1-year period
during which the mine is producing--
`(i) the operator's rate of citations for significant and substantial
violations--
`(I) are, on average, in the top performing 25th percentile
of such rates, respectively, for all mines of similar size and
type; or
`(II) have been reduced by 80 percent since such mine was placed
on pattern status;
`(ii) the operator's accident and injury rates are, on average,
in the top performing 25th percentile of such rates, respectively,
for all mines of similar size and type; and
`(iii) no citation or withdrawal orders for violations under section
104(d), no withdrawal orders for imminent danger under section
107 arising from a significant and substantial violation, and
no flagrant violations within the meaning of section 110(b), were
issued for such mine.
`(B) CONTINUATION OF PATTERN STATUS- Should the mine operator fail
to meet the performance benchmarks described in subparagraph (A),
the Secretary shall extend the mine's placement in pattern status
until such benchmarks are achieved.
`(7) EXPEDITED REVIEW- If any order under this subsection is contested,
the review of such order shall be conducted on an expedited basis,
in accordance with section 105(d).
`(8) REGULATIONS; INFORMATION ON PERFORMANCE-
`(A) IN GENERAL- Not later than 120 days after the date of enactment
of the Robert C. Byrd Mine and Workplace Safety and Health Act of
2011, the Secretary shall issue interim final regulations that shall
define--
`(i) the threshold criteria to trigger pattern status under paragraph
(1) and cause a withdrawal order to be issued or reissued; and
`(ii) the performance benchmarks described in paragraphs (5)(A)
and (6)(A).
`(B) THRESHOLD CRITERIA- In establishing threshold criteria to trigger
pattern status for mines with significantly poor compliance that
contributes to unsafe or unhealthy conditions, the Secretary--
`(i) shall consider frequency and rates of citations described
in paragraph (1)(A) and rates of reportable accidents and injuries
within the preceding 180-day period;
`(ii) may include factors such as mine type, production levels,
number of miners, hours worked by miners, number of mechanized
mining units (or similar production characteristics), and the
designation of a representative of miners at the mine;
`(iii) may include the mine's history of citations, violations,
orders, and other enforcement actions, or rates of reportable
accidents and injuries, over any period determined relevant by
the Secretary;
`(iv) may assign weight to various types of citations, orders,
accidents, injuries, illnesses, or other factors; and
`(v) may include other factors the Secretary may determine appropriate
to protect the safety and health of miners.
`(C) FINAL REGULATION- Not later than 2 years after the date of
enactment of the Robert C. Byrd Mine and Workplace Safety and Health
Act of 2011, the Secretary shall promulgate final regulations implementing
this paragraph.
`(D) GOVERNMENT ACCOUNTABILITY OFFICE STUDY- Not later than 2 years
after the promulgation of the final regulations under subparagraph
(C), the Comptroller General of the United States shall study the
effectiveness of the threshold criteria established in this paragraph
and issue to the Committee on Health, Education, Labor, and Pensions
of the Senate and to the Committee on Education and the Workforce
of the House of Representative a report on the results of the study.
In conducting this study, the Comptroller General shall consult
with all appropriate stakeholders.
`(9) PUBLIC DATABASE AND INFORMATION- The Secretary shall establish
and maintain a publically available electronic database containing
the data used to determine pattern status for all coal or other mines.
Such database shall be searchable, shall have the capacity to provide
comparative data about the health and safety at mines of similar sizes
and types. The Secretary shall also make publicly available--
`(A) a list of all mines the Secretary places in pattern status,
updated not less frequently than quarterly; and
`(B) the metrics, including percentile information, used for the
purposes of the performance benchmarks and threshold criteria described
in paragraphs (5), (6), and (8).
`(10) OPERATOR FEES FOR ADDITIONAL INSPECTIONS-
`(A) ASSESSMENT AND COLLECTION- Beginning 120 days after the date
of enactment of the Robert C. Byrd Mine and Workplace Safety and
Health Act of 2011, the Secretary shall assess and collect fees,
in accordance with this paragraph, from each coal or other mine
in pattern status for the costs of additional inspections under
this subsection. The Secretary shall issue, by rule, a schedule
of fees to be assessed against coal or other mines of varying types
and sizes, and shall collect and assess amounts under this paragraph
based on the schedule.
`(B) MINES IN PATTERN STATUS INSPECTION FUND- There is established
in the Treasury of the United States a separate account for the
deposit of fees collected under this paragraph to be known as the
Mines in Pattern Status Inspection Fund. The Secretary shall deposit
any fees collected pursuant to subparagraph (A) into the fund.
`(C) USE- Amounts in the Mines in Pattern Status Inspection Fund
shall be available to the Secretary, as provided in subparagraph
(D), for making expenditures to carry out the additional inspections
required under paragraph (2)(D).
`(D) AUTHORIZATION OF APPROPRIATIONS- In addition to any other amounts
appropriated, there is authorized to be appropriated from the Mines
in Pattern Status Inspection Fund to the Assistant Secretary for
Mine Safety and Health for each fiscal year in which fees are collected
under subparagraph (A) an amount equal to the total amount collected
during the previous fiscal year from fees assessed pursuant to this
paragraph. Such amounts are authorized to remain available until
expended.
`(E) CREDITING AND AVAILABILITY OF FEES- Fees authorized and collected
under this paragraph shall be available for obligation only to the
extent and in the amount provided in advance in appropriations Acts.'.
SEC. 203. INJUNCTIVE AUTHORITY.
Section 108(a)(2) (30 U.S.C. 818(a)(2)) is amended by striking `a pattern
of violation of' and all that follows and inserting `a course of conduct
that in the judgment of the Secretary constitutes a continuing hazard
to the health or safety of miners, including violations of this Act
or of mandatory health and safety standards or regulations under this
Act.'.
SEC. 204. REVOCATION OF APPROVAL OF PLANS.
Section 105 (30 U.S.C. 815) is amended--
(1) by redesignating subsection (d) as subsection (e); and
(2) by inserting after subsection (c) the following:
`(d) Revocation of Approval of Plans-
`(1) REVOCATION- If the Secretary finds that any program or plan of
an operator, or part thereof, that was approved by the Secretary under
this Act is based on inaccurate information or that circumstances
that existed when such plan was approved have materially changed and
that continued operation of such mine under such plan constitutes
a hazard to the safety or health of miners, the Secretary shall revoke
the approval of such program or plan.
`(2) WITHDRAWAL ORDERS- Upon revocation of the approval of a program
or plan under subsection (a), the Secretary may immediately issue
an order requiring the operator to cause all persons, except those
persons referred to in section 104(c), to be withdrawn from such mine,
and to be prohibited from entering such mine, until the operator has
submitted and the Secretary has approved a new plan.'.
SEC. 205. CHALLENGING A DECISION TO APPROVE, MODIFY, OR REVOKE A COAL
OR OTHER MINE PLAN.
Section 105(e) (as redesignated by section 204(1)) (30 U.S.C. 815(e))
is amended by adding at the end the following: `In any proceeding in
which a party challenges the Secretary's decision to approve, modify,
or revoke a coal or other mine plan under this Act, the Commission and
the courts shall affirm the Secretary's decision unless the challenging
party establishes that such decision was arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.'.
TITLE III--PENALTIES
SEC. 301. CIVIL PENALTIES.
(a) Maximum Civil Penalties- Section 110(a)(1) (30 U.S.C. 820(a)(1))
is amended--
(1) by inserting `including any regulation promulgated under this
Act,' after `this Act,'; and
(2) by striking `violation.' and inserting `violation, except that,
in the case of a significant and substantial violation, the penalty
shall be not more than $150,000 for each such violation.'.
(b) Increased Civil Penalties During Pattern Status- Section 110(b)
(30 U.S.C. 820(b)) is amended by adding at the end the following:
`(3) Notwithstanding any other provision of this Act, an operator of
a coal or other mine that is in pattern status under section 104(e)
and that fails to meet the performance benchmarks set forth by the Secretary
under section 104(e)(5)(A) during any performance review of the mine
following the first performance review shall be assessed an increased
civil penalty for any violation of this Act, including any mandatory
health or safety standard or regulation promulgated under this Act.
Such increased penalty shall be twice the amount that would otherwise
be assessed for the violation under this Act, including the regulations
promulgated under this Act, subject to the maximum civil penalty established
for the violation under this Act. This paragraph shall apply to violations
at such mine that occur during the period beginning after the failed
performance review following the first performance review, and ending
when the Secretary determines at a subsequent performance review that
the mine meets the performance benchmarks.'.
(c) Civil Penalty for Retaliation- Section 110(a) (30 U.S.C. 820(a))
is further amended--
(1) by redesignating paragraph (4) as paragraph (5); and
(2) by inserting after paragraph (3) the following:
`(4) If any person violates section 105(c), the Secretary shall propose,
and the Commission shall assess, a civil penalty of not less than $10,000
or more than $100,000 for the first occurrence of such violation, and
not less than $20,000 or more than $200,000 for any subsequent violation,
during any 3-year period.'.
SEC. 302. CIVIL AND CRIMINAL LIABILITY OF OFFICERS, DIRECTORS, AND
AGENTS.
Section 110(c) (30 U.S.C. 820(c)) is amended to read as follows:
`(c) Civil and Criminal Liability of Officers, Directors, and Agents-
Whenever an operator violates a provision of this Act, including any
mandatory health or safety standard or regulation promulgated under
this Act, or knowingly violates or fails or refuses to comply with any
order issued under this Act or any order incorporated in a final decision
issued under this Act, any director, officer, or agent of such operator
who knowingly authorized, ordered, or carried out such violation, failure,
or refusal, or any policy or practice that contributed to the occurrence
of such violation, failure, or refusal, shall be subject to the same
civil penalties, fines, and imprisonment that may be imposed upon a
person under this section.'.
SEC. 303. CRIMINAL PENALTIES.
(a) Intent Requirements for Criminal Penalty Standards- Section 110(d)
(30 U.S.C. 820(d)) is amended--
(1) by striking `willfully' and inserting `knowingly';
(2) by striking `$250,000, or by imprisonment for not more than one
year' and inserting `$1,000,000, or by imprisonment for not more than
5 years'; and
(3) by striking `$500,000, or by imprisonment for not more than five
years' and inserting `$2,000,000, or by imprisonment for not more
than 10 years'.
(b) Criminal Penalty for Retaliation- Section 110(d) is further amended--
(1) by inserting `(1)' before `Any operator'; and
(2) by adding at the end the following:
`(2) Whoever knowingly takes any action that is directly or indirectly
harmful to any person, including action that interferes with the lawful
employment or livelihood of any person, because such person has provided
an authorized representative of the Secretary or another law enforcement
officer with any information related to the existence of a health or
safety violation or an unhealthful or unsafe condition, policy, or practice
under this Act shall be fined under title 18, United States Code, imprisoned
for not more than 10 years, or both.'.
(c) Advance Notice of Inspections-
(1) IN GENERAL- Section 110(e) (30 U.S.C. 820(e)) is amended--
(A) by striking `Unless' and inserting `(1) Unless'; and
(B) by adding at the end the following:
`(2) Unless otherwise authorized by this Act, any operator, agent or
contractor of any operator, miner, inspector, employee of the Administration,
or State mine inspector, that knowingly gives, causes to give, or attempts
to give or cause to give advance notice of any inspection to be conducted
under this Act shall be fined under title 18, United States Code, imprisoned
for not more than 5 years, or both.'.
(2) POSTING OF ADVANCE NOTICE PENALTIES- Section 109 (30 U.S.C. 819)
is amended by adding at the end the following:
`(e) Posting of Advance Notice Penalties- Each operator of a coal or
other mine shall post, on the bulletin board described in subsection
(a) and in a conspicuous place near each staffed entrance onto the mine
property, a notice stating, in a form and manner to be prescribed by
the Secretary--
`(1) that giving, causing to give, or attempting to give or cause
to give advance notice of any inspection to be conducted under this
Act is unlawful pursuant to section 110(e); and
`(2) the maximum penalties for a violation under such subsection.'.
SEC. 304. COMMISSION REVIEW OF PENALTY ASSESSMENTS.
Section 110(i) (30 U.S.C. 820(i)) is amended by striking `In assessing
civil monetary penalties, the Commission shall consider' and inserting
the following: `In any review of a citation and proposed penalty assessment
contested by an operator, the Commission shall assess not less than
the penalty derived by using the same methodology (including any point
system) prescribed in regulations under this Act, so as to ensure consistency
in operator penalty assessments, except that the Commission may assess
a penalty for less than the amount that would result from the utilization
of such methodology if the Commission finds that there are extraordinary
circumstances. If there is no such methodology prescribed for a citation
or there are such extraordinary circumstances, the Commission shall
assess the penalty by considering'.
SEC. 305. DELINQUENT PAYMENTS AND PREJUDGMENT INTEREST.
(a) Pre-Final Order Interest- Section 110(j) (30 U.S.C. 820(j)) is amended
by striking the second and third sentences and inserting the following:
`Pre-final order interest on such penalties shall begin to accrue on
the date the operator contests a citation issued under this Act, including
any mandatory health or safety standard or regulation promulgated under
this Act, and shall end upon the issuance of the final order. Such pre-final
order interest shall be calculated at the current underpayment rate
determined by the Secretary of the Treasury pursuant to section 6621
of the Internal Revenue Code of 1986, and shall be compounded daily.
Post-final order interest shall begin to accrue 30 days after the date
a final order of the Commission or the court is issued, and shall be
charged at the rate of 8 percent per annum.'.
(b) Ensuring Payment of Penalties-
(1) AMENDMENTS- Section 110 (30 U.S.C. 820) is further amended--
(A) by redesignating subsection (l) as subsection (m); and
(B) by inserting after subsection (k) the following:
`(l) Ensuring Payments of Penalties-
`(1) DELINQUENT PAYMENT LETTER- If the operator of a coal or other
mine fails to pay any civil penalty assessment that has become a final
order of the Commission or a court within 90 days after such assessment
became a final order, the Secretary shall send the operator a letter
advising the operator of the consequences under this subsection of
such failure to pay. The letter shall also advise the operator of
the opportunity to enter into or modify a payment plan with the Secretary
based upon a demonstrated inability to pay, the procedure for entering
into such plan, and the consequences of not entering into or not complying
with such plan.
`(2) WITHDRAWAL ORDERS FOLLOWING FAILURE TO PAY- If an operator that
receives a letter under paragraph (1) has not paid the assessment
by the date that is 180 days after such assessment became a final
order and has not entered into a payment plan with the Secretary,
the Secretary shall issue an order requiring such operator to cause
all persons, except those referred to in section 104(c), to be withdrawn
from, and to be prohibited from entering, the mine that is covered
by the final order described in paragraph (1), until the operator
pays such assessment in full (including interest and administrative
costs) or enters into a payment plan with the Secretary. If such operator
enters into a payment plan with the Secretary and at any time fails
to comply with the terms specified in such payment plan, the Secretary
shall issue an order requiring such operator to cause all persons,
except those referred to in section 104(c), to be withdrawn from the
mine that is covered by such final order, and to be prohibited from
entering such mine, until the operator rectifies the noncompliance
with the payment plan in the manner specified in such payment plan.'.
(2) APPLICABILITY AND EFFECTIVE DATE- The amendments made by paragraph
(1) shall apply to all unpaid civil penalty assessments under the
Federal Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.),
except that, for any unpaid civil penalty assessment that became a
final order of the Commission or a court before the date of enactment
of this Act, the time periods under section 110(n) of the Federal
Mine Safety and Health Act of 1977 (as amended) (30 U.S.C. 820(n))
shall be calculated as beginning on the date of enactment of this
Act instead of on the date of the final order.
TITLE IV--WORKER RIGHTS AND PROTECTIONS
SEC. 401. PROTECTION FROM RETALIATION.
Section 105(c) (30 U.S.C. 815(c)) is amended to read as follows:
`(c) Protection From Retaliation-
`(1) RETALIATION PROHIBITED-
`(A) RETALIATION FOR COMPLAINT OR TESTIMONY- No person shall discharge
or in any manner discriminate against or cause to be discharged
or cause discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner or other employee
of an operator, representative of miners, or applicant for employment,
because--
`(i) such miner or other employee, representative, or applicant
for employment--
`(I) has filed or made a complaint, including a complaint notifying
the operator or the operator's agent, or the representative
of the miners at the coal or other mine of an alleged danger
or safety or health violation in a coal or other mine;
`(II) instituted or caused to be instituted any proceeding under
or related to this Act or has testified or is about to testify
in any such proceeding or because of the exercise by such miner
or other employee, representative, or applicant for employment
on behalf of him or herself or others of any right afforded
by this Act;
`(III) has testified or is about to testify before Congress
or any Federal or State proceeding related to safety or health
in a coal or other mine; or
`(IV) refused to violate any provision of this Act; or
`(ii) such miner is the subject of medical evaluations and potential
transfer under a standard published pursuant to section 101.
`(B) RETALIATION FOR REFUSAL TO PERFORM DUTIES-
`(i) IN GENERAL- No person shall discharge or in any manner discriminate
against a miner or other employee of an operator for refusing
to perform the miner's or other employee's duties if the miner
or other employee has a good-faith and reasonable belief that
performing such duties would pose a safety or health hazard to
the miner or other employee or to any other miner or employee.
`(ii) STANDARD- For purposes of clause (i), the circumstances
causing the miner's or other employee's good-faith belief that
performing such duties would pose a safety or health hazard shall
be of such a nature that a reasonable person, under the circumstances
confronting the miner or other employee, would conclude that there
is such a hazard. In order to qualify for protection under this
paragraph, the miner or other employee, when practicable, shall
have communicated or attempted to communicate the safety or health
concern to the operator and have not received from the operator
a response reasonably calculated to allay such concern.
`(2) COMPLAINT- Any miner or other employee or representative of miners
or applicant for employment who believes that he or she has been discharged,
disciplined, or otherwise discriminated against by any person in violation
of paragraph (1) may file a complaint with the Secretary alleging
such discrimination not later than 180 days after the later of the
last date on which an alleged violation of paragraph (1) occurs or
the date on which the miner or other employee or representative knows
or should reasonably have known that such alleged violation occurred.
`(3) INVESTIGATION AND HEARING-
`(A) COMMENCEMENT OF INVESTIGATION AND INITIAL DETERMINATION- Upon
receipt of such complaint, the Secretary shall forward a copy of
the complaint to the respondent, and shall commence an investigation
within 15 days of the Secretary's receipt of the complaint, and,
as soon as practicable after commencing such investigation, make
the determination required under subparagraph (B) regarding the
reinstatement of the miner or other employee.
`(B) REINSTATEMENT- If the Secretary finds that such complaint was
not frivolously brought, the Commission, on an expedited basis upon
application of the Secretary, shall order the immediate reinstatement
of the miner or other employee until there has been a final Commission
order disposing of the underlying complaint of the miner or other
employee. If either the Secretary or the miner or other employee
pursues the underlying complaint, such reinstatement shall remain
in effect until the Commission has disposed of such complaint on
the merits, regardless of whether the Secretary pursues such complaint
by filing a complaint under subparagraph (D) or the miner or other
employee pursues such complaint by filing an action under paragraph
(4). If neither the Secretary nor the miner or other employee pursues
the underlying complaint within the periods specified in paragraph
(4), such reinstatement shall remain in effect until such time as
the Commission may, upon motion of the operator and after providing
notice and an opportunity to be heard to the parties, vacate such
complaint for failure to prosecute.
`(C) INVESTIGATION- Such investigation shall include interviewing
the complainant and--
`(i) providing the respondent an opportunity to submit to the
Secretary a written response to the complaint and to present statements
from witnesses or provide evidence; and
`(ii) providing the complainant an opportunity to receive any
statements or evidence provided to the Secretary and rebut any
statements or evidence.
`(D) ACTION BY THE SECRETARY- If, upon such investigation, the Secretary
determines that the provisions of this subsection have been violated,
the Secretary shall immediately file a complaint with the Commission,
with service upon the alleged violator and the miner or other employee
or representative of miners alleging such discrimination or interference
and propose an order granting appropriate relief.
`(E) ACTION OF THE COMMISSION- The Commission shall afford an opportunity
for a hearing (in accordance with section 554 of title 5, United
States Code, but without regard to subsection (a)(3) of such section)
and thereafter shall issue an order, based upon findings of fact,
affirming, modifying, or vacating the Secretary's proposed order,
or directing other appropriate relief. Such order shall become final
30 days after its issuance. The complaining miner or other employee,
representative, or applicant for employment may present additional
evidence on his or her own behalf during any hearing held pursuant
to this paragraph.
`(F) RELIEF- The Commission shall have authority in such proceedings
to require a person committing a violation of this subsection to
take such affirmative action to abate the violation and prescribe
a remedy as the Commission considers appropriate, including--
`(i) the rehiring or reinstatement of the miner or other employee
with back pay and interest and without loss of position or seniority,
and restoration of the terms, rights, conditions, and privileges
associated with the complainant's employment;
`(ii) any other compensatory and consequential damages sufficient
to make the complainant whole, and exemplary damages where appropriate;
and
`(iii) expungement of all warnings, reprimands, or derogatory
references that have been placed in paper or electronic records
or databases of any type relating to the actions by the complainant
that gave rise to the unfavorable personnel action, and, at the
complainant's direction, transmission of a copy of the decision
on the complaint to any person whom the complainant reasonably
believes may have received such unfavorable information.
`(4) NOTICE TO AND ACTION OF COMPLAINANT-
`(A) NOTICE TO COMPLAINANT- Not later than 90 days of the receipt
of a complaint filed under paragraph (2), the Secretary shall notify,
in writing, the miner or other employee, applicant for employment,
or representative of miners of his determination whether a violation
has occurred.
`(B) ACTION OF COMPLAINANT- If the Secretary, upon investigation,
determines that the provisions of this subsection have not been
violated, the complainant shall have the right, within 30 days notice
of the Secretary's determination, to file an action in his or her
own behalf before the Commission, charging discrimination or interference
in violation of paragraph (1).
`(C) HEARING AND DECISION- The Commission shall afford an opportunity
for a hearing (in accordance with section 554 of title 5, United
States Code, but without regard to subsection (a)(3) of such section),
and thereafter shall issue an order, based upon findings of fact,
dismissing or sustaining the complainant's charges and, if the charges
are sustained, granting such relief as it deems appropriate as described
in paragraph (3)(F). Such order shall become final 30 days after
its issuance.
`(5) BURDEN OF PROOF- In adjudicating a complaint pursuant to this
subsection, the Commission may determine that a violation of paragraph
(1) has occurred only if the complainant demonstrates that any conduct
described in paragraph (1) with respect to the complainant was a contributing
factor in the adverse action alleged in the complaint. A decision
or order that is favorable to the complainant shall not be issued
pursuant to this subsection if the respondent demonstrates by clear
and convincing evidence that the respondent would have taken the same
adverse action in the absence of such conduct.
`(6) Attorneys' FEES- Whenever an order is issued sustaining the complainant's
charges under this subsection, a sum equal to the aggregate amount
of all costs and expenses, including attorney's fees, as determined
by the Commission to have been reasonably incurred by the complainant
for, or in connection with, the institution and prosecution of such
proceedings shall be assessed against the person committing such violation.
The Commission shall determine whether such costs and expenses were
reasonably incurred by the complainant without reference to whether
the Secretary also participated in the proceeding.
`(7) EXPEDITED PROCEEDINGS; JUDICIAL REVIEW- Proceedings under this
subsection shall be expedited by the Secretary and the Commission.
Any order issued by the Commission under this subsection shall be
subject to judicial review in accordance with section 106. Violations
by any person of paragraph (1) shall be subject to the provisions
of sections 108 and 110(a)(4).
`(8) PROCEDURAL RIGHTS- The rights and remedies provided for in this
subsection may not be waived by any agreement, policy, form, or condition
of employment, including by any pre-dispute arbitration agreement
or collective bargaining agreement.
`(9) SAVINGS- Nothing in this subsection shall be construed to diminish
the rights, privileges, or remedies of any employee who exercises
rights under any Federal or State law or common law, or under any
collective bargaining agreement.'.
SEC. 402. PROTECTION FROM LOSS OF PAY.
Section 111 (30 U.S.C. 821) is amended to read as follows:
`SEC. 111. ENTITLEMENT OF MINERS.
`(a) Protection From Loss of Pay-
`(1) WITHDRAWAL ORDER- If a coal or other mine or area of such mine
is closed by an order issued under section 103, 104, 107, 108, or
110, all miners who are idled by such order shall be entitled, regardless
of the result of any review of such order, to full compensation by
the operator at their regular rates of pay and in accordance with
their regular schedules of pay for the entire period for which they
are idled.
`(2) CLOSURE IN ADVANCE OF ORDER- If the Secretary finds that such
mine or such area of a mine was closed by the operator in anticipation
of the issuance of such an order, all miners who are idled by such
closure shall be entitled to full compensation by the operator at
their regular rates of pay and in accordance with their regular schedules
of pay, from the time of such closure until such time as the Secretary
authorizes reopening of such mine or such area of the mine.
`(3) REFUSAL TO COMPLY- Whenever an operator violates or fails or
refuses to comply with any order issued under section 103, 104, 107,
108, or 110, all miners employed at the affected mine who would have
been withdrawn from, or prevented from entering, such mine or area
thereof as a result of such order shall be entitled to full compensation
by the operator at their regular rates of pay, in addition to pay
received for work performed after such order was issued, for the period
beginning when such order was issued and ending when such order is
complied with, vacated, or terminated.
`(1) COMMISSION ORDERS- The Commission shall have authority to order
compensation due under this section upon the filing of a complaint
by a miner or his representative and after opportunity for hearing
subject to section 554 of title 5, United States Code. Whenever the
Commission issues an order sustaining the complaint under this subsection
in whole or in part, the Commission shall award the complainant reasonable
attorneys' fees and costs.
`(2) FAILURE TO PAY COMPENSATION DUE- Consistent with the authority
of the Secretary to order miners withdrawn from a mine under this
Act, the Secretary shall order a mine that has been subject to a withdrawal
order under section 103, 104, 107, 108, or 110, and has reopened,
to be closed again if compensation in accordance with the provisions
of this section is not paid by the end of the next regularly scheduled
payroll period following the lifting of a withdrawal order.'.
TITLE V--MODERNIZING HEALTH AND SAFETY STANDARDS
SEC. 501. PRE-SHIFT REVIEW OF MINE CONDITIONS.
Section 303(d) (30 U.S.C. 863(d)) is amended by adding at the end the
following:
`(3)(A) Not later than 30 days after the issuance of the interim final
rules promulgated under subparagraph (C), each operator of an underground
coal mine shall implement a communication program at the underground
coal mine to ensure that each miner entering the mine is made aware,
at the start of such miner's shift, of the current conditions of the
mine, including--
`(i) any conditions that are hazardous or that violate a mandatory
health or safety standard or a plan approved under this Act; and
`(ii) the general conditions of that miner's assigned working section
or other area.
`(B) In an effort to facilitate the communications described in subparagraph
(A), each agent of the operator who is responsible for ensuring the
safe and healthful working conditions at the mine, including mine foremen,
assistant mine foremen, and mine examiners, shall, upon exiting the
mine or workplace, verbally communicate with any oncoming agent replacing
the exiting agent on duty in order to update the oncoming agent on the
conditions the exiting agent observed during the exiting agent's shift,
including any conditions that are hazardous or that violate a mandatory
health or safety standard or a plan approved under this Act. Such communications
process shall be completed prior to the start of each shift at the mine
and recorded in a book designated for that purpose and available for
inspection by all interested parties. In the event the mine operation
is idle prior to the start of any shift, the oncoming agent of the operator
shall meet with the individual who was responsible for examining the
mine to obtain the necessary information.
`(C) Not later than 90 days after the date of enactment of the Robert
C. Byrd Mine and Workplace Safety and Health Act of 2011, the Secretary
shall promulgate interim final rules implementing the requirements of
subparagraphs (A) and (B).'.
SEC. 502. ROCK DUST STANDARDS.
(a) Standards- Section 304(d) (30 U.S.C. 864(d)) is amended--
(1) by striking `Where rock' and inserting the following: `Rock Dust-
`(1) IN GENERAL- Where rock';
(2) by striking `65 per centum' and all that follows and inserting
`80 percent. Where methane is present in any ventilating current,
the percentage of incombustible content of such combined dusts shall
be increased 0.4 percent for each 0.1 percent of methane.'; and
(3) by adding at the end the following:
`(2) METHODS OF MEASUREMENT-
`(A) IN GENERAL- Each operator of an underground coal mine shall
take accurate samples of the amount of coal dust, including float
coal dust deposited on rock-dusted surfaces, loose coal, and other
combustible materials in the active workings of such mines, to ensure
that the coal dust is kept below explosive levels through the appropriate
application of rock dusting.
`(B) DIRECT READING MONITORS- By the later of June 15, 2012, or
the date that is 30 days after the Secretary of Health and Human
Services has certified in writing that direct reading monitors are
commercially available to measure total incombustible content in
coal dust and the Department of Labor has approved such monitors
for use in underground coal mines, the Secretary shall require operators
to take coal dust samples using direct reading monitors.
`(C) REGULATIONS- The Secretary shall, not later than 180 days after
the date of enactment of the Robert C. Byrd Mine and Workplace Safety
and Health Act of 2011 promulgate an interim final rule that prescribes
methods for sampling of total incombustible content of coal dust
using direct reading monitors and includes requirements for locations,
methods, and intervals for mandatory operator sampling.
`(D) RECOMMENDATIONS- Not later than 1 year after the date of enactment
of the Robert C. Byrd Mine and Workplace Safety and Health Act of
2011, the Secretary of Health and Human Services shall, based upon
the latest research, recommend to the Secretary of Labor any revisions
to the mandatory operator sampling locations, methods, and intervals
included in the interim final rule described in subparagraph (C)
that may be warranted in light of such research.'.
(b) Report- Not later than 2 years after the date of enactment of this
Act, the Secretary of Health and Human Services, in consultation with
the Secretary of Labor, shall prepare and submit, to the Committee on
Education and the Workforce of the House of Representatives and the
Committee on Health, Education, Labor, and Pensions of the Senate, a
report--
(1) regarding whether any direct reading device described in section
304(d)(2)(B) of the Federal Mine Safety and Health Act of 1977 (30
U.S.C. 864(d)(2)(B)) is sufficiently reliable and accurate for the
enforcement of the mandatory health or safety standards by the Secretary
of Labor under such Act, and whether additional improvement to such
direct reading device, or additional verification regarding reliability
and accuracy, would be needed for enforcement purposes; and
(2) identifying any limitations or impediments for such use in underground
coal mines.
SEC. 503. ATMOSPHERIC MONITORING SYSTEMS.
Section 317 (30 U.S.C. 877) is amended by adding at the end the following:
`(u) Atmospheric Monitoring Systems-
`(1) NIOSH RECOMMENDATIONS- Not later than 6 months after the date
of enactment of the Robert C. Byrd Mine and Workplace Safety and Health
Act of 2011, the Director of the National Institute for Occupational
Safety and Health, acting through the Office of Mine Safety and Health
Research, shall issue recommendations to the Secretary regarding--
`(A) how to ensure that atmospheric monitoring systems are utilized
in the underground coal mining industry to maximize the health and
safety of underground coal miners; and
`(B) the implementation of redundant systems, such as the bundle
tubing system, that can continuously monitor the mine atmosphere
following incidents such as fires, explosions, entrapments, and
inundations.
`(2) ATMOSPHERIC MONITORING SYSTEM REGULATIONS- Not later than 270
days following the receipt of the recommendations described in paragraph
(1), the Secretary shall promulgate regulations requiring that each
operator of an underground coal mine install atmospheric monitoring
systems, consistent with such recommendations, that--
`(A) protect miners where the miners normally work and travel;
`(B) provide real-time information regarding methane and carbon
monoxide levels, and airflow direction, as appropriate, with sensing,
annunciating, and recording capabilities; and
`(C) can, to the maximum extent practicable, withstand explosions
and fires.'.
SEC. 504. TECHNOLOGY RELATED TO RESPIRABLE DUST.
Section 202(d) (30 U.S.C. 842(d)) is amended--
(1) by striking `of Health and Human Services'; and
(2) by striking the second sentence and inserting the following: `Not
later than 2 years after the date of enactment of the Robert C. Byrd
Mine and Workplace Safety and Health Act of 2011, the Secretary shall
promulgate final regulations that require operators, beginning on
the date such regulations are issued, to provide coal miners with
the maximum feasible protection from respirable dust, including coal
and silica dust, that is achievable through environmental controls.'.
SEC. 505. REFRESHER TRAINING ON MINER RIGHTS AND RESPONSIBILITIES.
(a) In General- Section 115(a)(3) (30 U.S.C. 825(a)(3)) is amended to
read as follows:
`(3) all miners shall receive not less than 9 hours of refresher training
not less frequently than once every 12 months, and such training shall
include one hour of training on the statutory rights and responsibilities
of miners and their representatives under this Act and other applicable
Federal and State law, pursuant to a program of instruction developed
by the Secretary and delivered by an employee of the Administration
or by a trainer approved by the Administration that is a party independent
from the operator;'.
(b) Timing of Initial Statutory Rights Training- Notwithstanding section
115 of the Federal Mine Safety and Health Act of 1977 (as amended by
subsection (a)) (30 U.S.C. 825) or the health and safety training program
approved under such section, an operator shall ensure that all miners
already employed by the operator on the date of enactment of this Act
shall receive the one hour of statutory rights and responsibilities
training described in section 115(a)(3) of such Act not later than 180
days after such date.
SEC. 506. AUTHORITY TO MANDATE ADDITIONAL TRAINING.
(a) In General- Section 115 (30 U.S.C. 825) is further amended by redesignating
subsection (e) as subsection (f) and inserting after subsection (d)
the following:
`(e) Authority To Mandate Additional Training-
`(1) IN GENERAL- The Secretary is authorized to issue an order requiring
that an operator of a coal or other mine provide additional training
beyond what is otherwise required by law, and specifying the time
within which such training shall be provided, if the Secretary finds
that--
`(A)(i) a serious or fatal accident has occurred at such mine; or
`(ii) such mine has experienced accident and injury rates, citations
for violations of this Act (including mandatory health or safety
standards or regulations promulgated under this Act), citations
for significant and substantial violations, or withdrawal orders
issued under this Act at a rate above the average for mines of similar
size and type; and
`(B) additional training would benefit the health and safety of
miners at the mine.
`(2) WITHDRAWAL ORDER- If the operator fails to provide training ordered
under paragraph (1) within the specified time, the Secretary shall
issue an order requiring such operator to cause all affected persons,
except those persons referred to in section 104(c), to be withdrawn,
and to be prohibited from entering such mine, until such operator
has provided such training.'.
(b) Conforming Amendments- Section 104(g)(2) (30 U.S.C. 814(g)(2)) is
amended by striking `under paragraph (1)' both places it appears and
inserting `under paragraph (1) or under section 115(e)'.
SEC. 507. CERTIFICATION OF PERSONNEL.
(a) In General- Title I is further amended by adding at the end the
following:
`SEC. 117. CERTIFICATION OF PERSONNEL.
`(a) Certification Required- Any person who is authorized or designated
by the operator of a coal or other mine to perform any duties or provide
any training that this Act, including a mandatory health or safety standard
or regulation promulgated pursuant to this Act, requires to be performed
or provided by a certified, registered, qualified, or otherwise approved
person, shall be permitted to perform such duties or provide such training
only if such person has a current certification, registration, qualification,
or approval to perform such duties or provide such training consistent
with the requirements of this section.
`(b) Establishment of Certification Requirements and Procedures-
`(1) IN GENERAL- Not later than 1 year after the date of enactment
of the Robert C. Byrd Mine and Workplace Safety and Health Act of
2011, the Secretary shall issue mandatory standards to establish--
`(A) requirements for such certification, registration, qualification,
or other approval, including the experience, examinations, and references
that may be required as appropriate;
`(B) time limits for such certifications and procedures for obtaining
and renewing such certification, registration, qualification, or
other approval; and
`(C) procedures and criteria for revoking such certification, registration,
qualification, or other approval, including procedures that ensure
that the Secretary responds to requests for revocation.
`(2) COORDINATION WITH STATES- In developing such standards, the Secretary
shall consult with States that have miner certification programs to
ensure effective coordination with existing State standards and requirements
for certification. The standards required under paragraph (1) may
provide that the certification, registration, qualification, or other
approval of the State in which the coal or other mine is located satisfies
the requirement of subsection (a) if the State's program of certification,
registration, qualification, or other approval is no less stringent
than the standards established by the Secretary under paragraph (1).
`(c) Operator Fees for Certification-
`(1) ASSESSMENT AND COLLECTION- Beginning 180 days after the date
of enactment of the Robert C. Byrd Mine and Workplace Safety and Health
Act of 2011, the Secretary shall assess and collect fees, in accordance
with this subsection, from each operator for each person certified
under this section. Fees shall be assessed and collected in amounts
determined by the Secretary as necessary to fund the certification
programs established under this section.
`(2) MINE SAFETY AND HEALTH CERTIFICATION FUND- There is established
in the Treasury of the United States a separate account for the deposit
of fees collected under this subsection to be known as the Mine Safety
and Health Certification Fund. The Secretary shall deposit any fees
collected pursuant to paragraph (1) into the fund.
`(3) USE- Amounts in the Mine Safety and Health Certification Fund
shall be available to the Secretary, as provided in paragraph (4),
for making expenditures to carry out the certification programs established
under this subsection.
`(4) AUTHORIZATION OF APPROPRIATIONS- In addition to funds appropriated
under section 114, there is authorized to be appropriated from the
Mine Safety and Health Certification Fund to the Assistant Secretary
for Mine Safety and Health for each fiscal year in which fees are
collected under paragraph (1) an amount equal to the total amount
collected during the previous fiscal year from fees assessed pursuant
to this subsection. Such amounts are authorized to remain available
until expended.
`(5) CREDITING AND AVAILABILITY OF FEES- Fees authorized and collected
under this subsection shall be available for obligation only to the
extent and in the amount provided in advance in appropriations Acts.
`(d) Citation; Withdrawal Order- Any operator who permits a person to
perform any of the health or safety related functions described in subsection
(a) without a current certification which meets the requirements of
this section shall be considered to have committed an unwarrantable
failure under section 104(d)(1), and the Secretary shall issue an order
requiring that the miner be withdrawn or reassigned to duties that do
not require such certification.'.
(b) Conforming Amendments- Section 318 (30 U.S.C. 878) is amended--
(1) by striking subsections (a) and (b);
(2) in subsection (c), by redesignating paragraphs (1) through (3)
as subparagraphs (A) through (C), respectively;
(3) in subsection (g), by redesignating paragraphs (1) through (4)
as subparagraphs (A) through (D), respectively; and
(4) by redesignating subsections (c) through (j) as paragraphs (1)
through (8), respectively.
TITLE VI--ADDITIONAL MINE SAFETY PROVISIONS
SEC. 601. DEFINITIONS.
(a) Definition of Operator- Section 3(d) (30 U.S.C. 802) is amended
to read as follows:
`(1) any owner, lessee, or other person that--
`(A) operates or supervises a coal or other mine; or
`(B) controls such mine by making or having the authority to make
management or operational decisions that affect, directly or indirectly,
the health or safety at such mine; or
`(2) any independent contractor performing services or construction
at such mine;'.
(b) Definition of Agent- Section 3(e) (30 U.S.C. 802(e)) is amended
by striking `the miners' and inserting `any miner'.
(c) Definition of Miner- Section 3(g) (30 U.S.C. 802(g)) is amended
by inserting after `or other mine' the following: `, and includes any
individual who is not currently working in a coal or other mine but
would be currently working in such mine, but for an accident in such
mine'.
(d) Definition of Significant and Substantial Violations- Section 3
(30 U.S.C. 802) is further amended--
(1) in subsection (m), by striking `and' after the semicolon;
(2) in subsection (n), by striking the period at the end and inserting
a semicolon;
(3) in subsection (o), by striking the period at the end and inserting
`; and'; and
(4) by adding at the end the following:
`(p) `significant and substantial violation' means a violation of this
Act, including any mandatory health or safety standard or regulation
promulgated under this Act, that is of such nature as could significantly
and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard as described in section 104(d).'.
SEC. 602. ASSISTANCE TO STATES.
Section 503 (30 U.S.C. 953(a)) is amended--
(A) in the matter preceding paragraph (1), by striking `, in coordination
with the Secretary of Health, Education, and Welfare and the Secretary
of the Interior,';
(B) in paragraph (2), by striking `and' after the semicolon;
(C) in paragraph (3), by striking the period and inserting `; and';
and
(D) by adding at the end the following:
`(4) to assist such State in developing and implementing any certification
program for coal or other mines required for compliance with section
117.'; and
(2) in subsection (h), by striking `$3,000,000 for fiscal year 1970,
and $10,000,000 in each succeeding fiscal year' and inserting `$20,000,000
for each fiscal year'.
SEC. 603. BLACK LUNG MEDICAL REPORTS.
Title IV of the Black Lung Benefits Act (30 U.S.C. 901 et seq.) is amended
by adding at the end the following:
`SEC. 435. MEDICAL REPORTS.
`In any claim for benefits for a miner under this title, an operator
that requires a miner to submit to a medical examination regarding the
miner's respiratory or pulmonary condition shall, not later than 14
days after the miner has been examined, deliver to the claimant a complete
copy of the examining physician's report. The examining physician's
report shall be in writing and shall set out in detail the examiner's
findings, including any diagnoses and conclusions and the results of
any diagnostic imaging techniques and tests that were performed on the
miner.'.
SEC. 604. STUDY ON WORKFORCE NEEDS.
(a) In General- Not later than 18 months after the date of enactment
of this Act, the Comptroller General of the United States shall conduct
a study on the workforce needs of the mining industry and Federal and
State enforcement agencies, including the need for engineers and mine
safety and health professionals.
(b) Issues To Be Studied- The study in subsection (a) shall include--
(1) an analysis of the training and expertise of the mine engineers
and the safety and health workforce; and
(2) the need for a highly trained workforce of engineers and safety
and health professionals within--
(B) the Mine Safety Health Administration; and
(C) State enforcement agencies responsible for mine safety and health.
(c) Report- The Comptroller General of the United States shall prepare
and submit to the Committee on Health, Education, Labor, and Pensions
of the Senate and to the Committee on Education and the Workforce of
the House of Representatives a report on the study in subsection (a).
(d) Recommendations- As needed, the Comptroller General of the United
States shall provide recommendations for improvement in the report in
subsection (c).
SEC. 605. MINE SAFETY AND HEALTH ADMINISTRATION STRATEGIC PLANNING.
(a) Strategic Plan- Not later than December 31, 2011, the Secretary
of Labor, acting through the Assistant Secretary of Labor for Mine Safety
and Health, shall submit to the Director of the Office of Management
and Budget and to the Congress and post on the public website of the
Mine Safety and Health Administration, a 5-year strategic plan for program
activities. Such plan shall be--
(1) prepared in accordance with the requirements for agency strategic
plans under section 306 of title 5, United States Code, except as
otherwise provided in this section;
(2) aligned with the strategic plan of the Department of Labor; and
(3) revised at least once every 4 years.
(b) Annual Performance Plan- Beginning with the Mine Safety and Health
Administration budget submission for fiscal year 2013, the Secretary
of Labor, acting through the Assistant Secretary of Labor for Mine Safety
and Health, shall submit to the Director of the Office of Management
and Budget an annual performance plan covering each program activity
set forth in the budget of the Mine Safety and Health Administration.
Such plan shall--
(1) be prepared in accordance with the requirements for performance
plans under section 1115 of title 31, United States Code, except as
otherwise provided in this section;
(2) be consistent with the strategic plan of the Mine Safety and Health
Administration under subsection (a); and
(3) include a strategic workforce plan that provides a clear line
of sight between the performance goals and objectives of the Mine
Safety and Health Administration and the human capital strategies
employed to meet such goals and objectives.
(c) Report- Not later than 150 days after the end of a fiscal year,
beginning with fiscal year 2013, the Secretary of Labor, acting through
the Assistant Secretary of Labor for Mine Safety and Health, shall prepare
and submit to the President and the Congress and post on the public
website of the Mine Safety and Health Administration, a report on the
program performance for the previous fiscal year. Such report shall--
(1) be prepared in accordance with the requirements for program performance
reports under section 1116 of title 31, United States Code; and
(2) address the extent to which the Mine Safety and Health Administration
is using performance information to improve program performance.
TITLE VII--AMENDMENTS TO THE OCCUPATIONAL SAFETY AND HEALTH ACT
SEC. 701. ENHANCED PROTECTIONS FROM RETALIATION.
(a) Employee Actions- Section 11(c)(1) of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 660(c)(1)) is amended--
(1) by striking `discharge' and all that follows through `because
such' and inserting the following: `discharge or cause to be discharged,
or in any manner discriminate against or cause to be discriminated
against, any employee because--
(2) by striking `this Act or has' and inserting the following: `this
Act;
(3) by striking `such proceeding or because of the exercise' and inserting
the following: `before Congress or in any Federal or State proceeding
related to safety or health;
`(C) such employee has refused to violate any provision of this Act;
or
`(D) of the exercise'; and
(4) by inserting before the period at the end the following: `, including
the reporting of any injury, illness, or unsafe condition to the employer,
agent of the employer, safety and health committee involved, or employee
safety and health representative involved'.
(b) Prohibition of Retaliation- Section 11(c) of such Act (29 U.S.C.
660(c)) is amended by striking paragraph (2) and inserting the following:
`(2)(A) No person shall discharge, or cause to be discharged, or in
any manner discriminate against, or cause to be discriminated against,
an employee for refusing to perform the employee's duties if the employee
has a reasonable apprehension that performing such duties would result
in serious injury to, or serious impairment of the health of, the employee
or other employees.
`(B) For purposes of subparagraph (A), the circumstances causing the
employee's good-faith belief that performing such duties would pose
a safety or health hazard shall be of such a nature that a reasonable
person, under the circumstances confronting the employee, would conclude
that there is such a hazard. In order to qualify for protection under
this paragraph, the employee, when practicable, shall have communicated
or attempted to communicate the safety or health concern to the employer
and have not received from the employer a response reasonably calculated
to allay such concern.'.
(c) Procedure- Section 11(c) of such Act (29 U.S.C. 660(c)) is amended
by striking paragraph (3) and inserting the following:
`(3) COMPLAINT- Any employee who believes that the employee has been
discharged, disciplined, or otherwise discriminated against by any
person in violation of paragraph (1) or (2) may seek relief for such
violation by filing a complaint with the Secretary under paragraph
(5).
`(4) STATUTE OF LIMITATIONS-
`(A) IN GENERAL- An employee may take the action permitted by paragraph
(3) not later than 180 days after the later of--
`(i) the date on which an alleged violation of paragraph (1) or
(2) occurs; or
`(ii) the date on which the employee knows or should reasonably
have known that such alleged violation occurred.
`(B) REPEAT VIOLATION- Except in cases when the employee has been
discharged, a violation of paragraph (1) or (2) shall be considered
to have occurred on the last date an alleged repeat violation occurred.
`(A) IN GENERAL- An employee may, within the time period required
under paragraph (4), file a complaint with the Secretary alleging
a violation of paragraph (1) or (2). If the complaint alleges a
prima facie case, the Secretary shall conduct an investigation of
the allegations in the complaint, which--
`(I) interviewing the complainant;
`(II) providing the respondent an opportunity to--
`(aa) submit to the Secretary a written response to the complaint;
and
`(bb) meet with the Secretary to present statements from witnesses
or provide evidence; and
`(III) providing the complainant an opportunity to--
`(aa) receive any statements or evidence provided to the Secretary;
`(bb) meet with the Secretary; and
`(cc) rebut any statements or evidence; and
`(ii) may include issuing subpoenas for the purposes of such investigation.
`(B) DECISION- Not later than 90 days after the filing of the complaint,
the Secretary shall--
`(i) determine whether reasonable cause exists to believe that
a violation of paragraph (1) or (2) has occurred; and
`(ii) issue a decision granting or denying relief.
`(6) PRELIMINARY ORDER FOLLOWING INVESTIGATION- If, after completion
of an investigation under paragraph (5)(A), the Secretary finds reasonable
cause to believe that a violation of paragraph (1) or (2) has occurred,
the Secretary shall issue a preliminary order providing relief authorized
under paragraph (14) at the same time the Secretary issues a decision
under paragraph (5)(B). If a de novo hearing is not requested within
the time period required under paragraph (7)(A)(i), such preliminary
order shall be deemed a final order of the Secretary and is not subject
to judicial review.
`(A) REQUEST FOR HEARING-
`(i) IN GENERAL- A de novo hearing on the record before an administrative
law judge may be requested--
`(I) by the complainant or respondent within 30 days after receiving
notification of a decision granting or denying relief issued
under paragraph 5(D) or paragraph (6) respectively;
`(II) by the complainant within 30 days after the date the complaint
is dismissed without investigation by the Secretary under paragraph
(5)(A); or
`(III) by the complainant within 120 days after the date of
filing the complaint, if the Secretary has not issued a decision
under paragraph (5)(B).
`(ii) REINSTATEMENT ORDER- The request for a hearing shall not
operate to stay any preliminary reinstatement order issued under
paragraph (6).
`(i) IN GENERAL- A hearing requested under this paragraph shall
be conducted expeditiously and in accordance with rules established
by the Secretary for hearings conducted by administrative law
judges.
`(ii) SUBPOENAS; PRODUCTION OF EVIDENCE- In conducting any such
hearing, the administrative law judge may issue subpoenas. The
respondent or complainant may request the issuance of subpoenas
that require the deposition of, or the attendance and testimony
of, witnesses and the production of any evidence (including any
books, papers, documents, or recordings) relating to the matter
under consideration.
`(iii) DECISION- The administrative law judge shall issue a decision
not later than 90 days after the date on which a hearing was requested
under this paragraph and promptly notify, in writing, the parties
and the Secretary of such decision, including the findings of
fact and conclusions of law. If the administrative law judge finds
that a violation of paragraph (1) or (2) has occurred, the judge
shall issue an order for relief under paragraph (14). If review
under paragraph (8) is not timely requested, such order shall
be deemed a final order of the Secretary that is not subject to
judicial review.
`(8) ADMINISTRATIVE APPEAL-
`(A) IN GENERAL- Not later than 30 days after the date of notification
of a decision and order issued by an administrative law judge under
paragraph (7), the complainant or respondent may file, with objections,
an administrative appeal with an administrative review body designated
by the Secretary (referred to in this paragraph as the `review board').
`(B) STANDARD OF REVIEW- In reviewing the decision and order of
the administrative law judge, the review board shall affirm the
decision and order if it is determined that the factual findings
set forth therein are supported by substantial evidence and the
decision and order are made in accordance with applicable law.
`(C) DECISIONS- If the review board grants an administrative appeal,
the review board shall issue a final decision and order affirming
or reversing, in whole or in part, the decision under review by
not later than 90 days after receipt of the administrative appeal.
If it is determined that a violation of paragraph (1) or (2) has
occurred, the review board shall issue a final decision and order
providing relief authorized under paragraph (14). Such decision
and order shall constitute final agency action with respect to the
matter appealed.
`(9) SETTLEMENT IN THE ADMINISTRATIVE PROCESS-
`(A) IN GENERAL- At any time before issuance of a final order, an
investigation or proceeding under this subsection may be terminated
on the basis of a settlement agreement entered into by the parties.
`(B) PUBLIC POLICY CONSIDERATIONS- Neither the Secretary, an administrative
law judge, or review board conducting a hearing under this subsection
shall accept a settlement that contains conditions conflicting with
the rights protected under this Act or that are contrary to public
policy, including a restriction on a complainant's right to future
employment with employers other than the specific employers named
in a complaint.
`(10) INACTION BY THE REVIEW BOARD OR ADMINISTRATIVE LAW JUDGE-
`(A) IN GENERAL- The complainant may bring a de novo action described
in subparagraph (B) if--
`(i) an administrative law judge has not issued a decision and
order within the 90-day time period required under paragraph (7)(B)(iii);
or
`(ii) the review board has not issued a decision and order within
the 90-day time period required under paragraph (8)(C).
`(B) DE NOVO ACTION- Such de novo action may be brought at law or
equity in the United States district court for the district where
a violation of paragraph (1) or (2) allegedly occurred or where
the complainant resided on the date of such alleged violation. The
court shall have jurisdiction over such action without regard to
the amount in controversy and to order appropriate relief under
paragraph (14). Such action shall, at the request of either party
to such action, be tried by the court with a jury.
`(A) TIMELY APPEAL TO THE COURT OF APPEALS- Any party adversely
affected or aggrieved by a final decision and order issued under
this subsection may obtain review of such decision and order in
the United States Court of Appeals for the circuit where the violation,
with respect to which such final decision and order was issued,
allegedly occurred or where the complainant resided on the date
of such alleged violation. To obtain such review, a party shall
file a petition for review not later than 60 days after the final
decision and order was issued. Such review shall conform to chapter
7 of title 5, United States Code. The commencement of proceedings
under this subparagraph shall not, unless ordered by the court,
operate as a stay of the final decision and order.
`(B) LIMITATION ON COLLATERAL ATTACK- An order and decision with
respect to which review may be obtained under subparagraph (A) shall
not be subject to judicial review in any criminal or other civil
proceeding.
`(12) ENFORCEMENT OF ORDER- If a respondent fails to comply with an
order issued under this subsection, the Secretary or the complainant
on whose behalf the order was issued may file a civil action for enforcement
in the United States district court for the district in which the
violation was found to occur to enforce such order. If both the Secretary
and the complainant file such action, the action of the Secretary
shall take precedence. The district court shall have jurisdiction
to grant all appropriate relief described in paragraph (14).
`(A) CRITERIA FOR DETERMINATION- In making a determination or adjudicating
a complaint pursuant to this subsection, the Secretary, administrative
law judge, review board, or a court may determine that a violation
of paragraph (1) or (2) has occurred only if the complainant demonstrates
that any conduct described in paragraph (1) or (2) with respect
to the complainant was a contributing factor in the adverse action
alleged in the complaint.
`(B) PROHIBITION- Notwithstanding subparagraph (A), a decision or
order that is favorable to the complainant shall not be issued in
any administrative or judicial action pursuant to this subsection
if the respondent demonstrates by clear and convincing evidence
that the respondent would have taken the same adverse action in
the absence of such conduct.
`(A) ORDER FOR RELIEF- If the Secretary, administrative law judge,
review board, or a court determines that a violation of paragraph
(1) or (2) has occurred, the Secretary or court, respectively, shall
have jurisdiction to order all appropriate relief, including injunctive
relief, compensatory and exemplary damages, including--
`(i) affirmative action to abate the violation;
`(ii) reinstatement without loss of position or seniority, and
restoration of the terms, rights, conditions, and privileges associated
with the complainant's employment, including opportunities for
promotions to positions with equivalent or better compensation
for which the complainant is qualified;
`(iii) compensatory and consequential damages sufficient to make
the complainant whole, (including back pay, prejudgment interest,
and other damages); and
`(iv) expungement of all warnings, reprimands, or derogatory references
that have been placed in paper or electronic records or databases
of any type relating to the actions by the complainant that gave
rise to the unfavorable personnel action, and, at the complainant's
direction, transmission of a copy of the decision on the complaint
to any person whom the complainant reasonably believes may have
received such unfavorable information.
`(B) Attorneys' FEES AND COSTS- If the Secretary or an administrative
law judge, review board, or court grants an order for relief under
subparagraph (A), the Secretary, administrative law judge, review
board, or court, respectively, shall assess, at the request of the
employee against the employer--
`(i) reasonable attorneys' fees; and
`(ii) costs (including expert witness fees) reasonably incurred,
as determined by the Secretary, administrative law judge, review
board, or court, respectively, in connection with bringing the
complaint upon which the order was issued.
`(15) PROCEDURAL RIGHTS- The rights and remedies provided for in this
subsection may not be waived by any agreement, policy, form, or condition
of employment, including by any pre-dispute arbitration agreement
or collective bargaining agreement.
`(16) SAVINGS- Nothing in this subsection shall be construed to diminish
the rights, privileges, or remedies of any employee who exercises
rights under any Federal or State law or common law, or under any
collective bargaining agreement.
`(A) IN GENERAL- An employee of an employer who is located in a
State that has a State plan approved under section 18 may file a
complaint alleging a violation of paragraph (1) or (2) by such employer
with--
`(i) the Secretary under paragraph (5); or
`(ii) a State plan administrator in such State.
`(i) the Secretary receives a complaint pursuant to subparagraph
(A)(i), the Secretary shall not refer such complaint to a State
plan administrator for resolution; or
`(ii) a State plan administrator receives a complaint pursuant
to subparagraph (A)(ii), the State plan administrator shall not
refer such complaint to the Secretary for resolution.'.
(d) Relation to Enforcement- Section 17(j) of such Act (29 U.S.C. 666(j))
is amended by inserting before the period the following: `, including
the history of violations under section 11(c)'.
SEC. 702. VICTIMS' RIGHTS.
The Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.)
is amended by inserting after section 9 (29 U.S.C. 658) the following:
`SEC. 9A. VICTIMS' RIGHTS.
`(a) Rights Before the Secretary- A victim or the representative of
a victim, shall be afforded the right, with respect to an inspection
or investigation conducted under section 8 to--
`(1) meet with the Secretary regarding the inspection or investigation
conducted under such section before the Secretary's decision to issue
a citation or take no action;
`(2) receive, at no cost, a copy of any citation or report, issued
as a result of such inspection or investigation, at the same time
as the employer receives such citation or report;
`(3) be informed of any notice of contest or addition of parties to
the proceedings filed under section 10(c); and
`(4) be provided notification of the date and time or any proceedings,
service of pleadings, and other relevant documents, and an explanation
of the rights of the employer, employee and employee representative,
and victim to participate in proceedings conducted under section 10(c).
`(b) Rights Before the Commission- Upon request, a victim or representative
of a victim shall be afforded the right with respect to a work-related
bodily injury or death to--
`(1) be notified of the time and date of any proceeding before the
Commission;
`(2) receive pleadings and any decisions relating to the proceedings;
and
`(3) be provided an opportunity to appear and make a statement in
accordance with the rules prescribed by the Commission.
`(c) Modification of Citation- Before entering into an agreement to
withdraw or modify a citation issued as a result of an inspection or
investigation of an incident under section 8, the Secretary shall notify
a victim or representative of a victim and provide the victim or representative
of a victim with an opportunity to appear and make a statement before
the parties conducting settlement negotiations. In lieu of an appearance,
the victim or representative of the victim may elect to submit a letter
to the Secretary and the parties.
`(d) Secretary Procedures- The Secretary shall establish procedures--
`(1) to inform victims of their rights under this section; and
`(2) for the informal review of any claim of a denial of such a right.
`(e) Commission Procedures and Considerations- The Commission shall--
`(1) establish procedures relating to the rights of victims to be
heard in proceedings before the Commission; and
`(2) in rendering any decision, provide due consideration to any statement
or information provided by any victim before the Commission.
`(f) Family Liaisons- The Secretary shall designate at least 1 employee
at each area office of the Occupational Safety and Health Administration
to serve as a family liaison to--
`(1) keep victims informed of the status of investigations, enforcement
actions, and settlement negotiations; and
`(2) assist victims in asserting their rights under this section.
`(g) Definition- In this section, the term `victim' means--
`(1) an employee, including a former employee, who has sustained a
work-related injury or illness that is the subject of an inspection
or investigation conducted under section 8; or
`(2) a family member (as further defined by the Secretary) of a victim
described in paragraph (1), if--
`(A) the victim dies as a result of a incident that is the subject
of an inspection or investigation conducted under section 8; or
`(B) the victim sustains a work-related injury or illness that is
the subject of an inspection or investigation conducted under section
8, and the victim because of incapacity cannot reasonably exercise
the rights under this section.'.
SEC. 703. CORRECTION OF SERIOUS, WILLFUL, OR REPEATED VIOLATIONS PENDING
CONTEST AND PROCEDURES FOR A STAY.
Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C.
659) is amended by adding at the end the following:
`(d) Correction of Serious, Willful, or Repeated Violations Pending
Contest and Procedures for a Stay-
`(1) PERIOD PERMITTED FOR CORRECTION OF SERIOUS, WILLFUL, OR REPEATED
VIOLATIONS- For each violation which the Secretary designates as serious,
willful, or repeated, the period permitted for the correction of the
violation shall begin to run upon receipt of the citation.
`(2) FILING OF A MOTION OF CONTEST- The filing of a notice of contest
by an employer--
`(A) shall not operate as a stay of the period for correction of
a violation designated as serious, willful, or repeated; and
`(B) may operate as a stay of the period for correction of a violation
not designated by the Secretary as serious, willful, or repeated.
`(3) CRITERIA AND RULES OF PROCEDURE FOR STAYS-
`(A) MOTION FOR A STAY- An employer may file with the Commission
a motion to stay a period for the correction of a violation designated
as serious, willful, or repeated.
`(B) CRITERIA- In determining whether a stay should be issued on
the basis of a motion filed under subparagraph (A), the Commission
shall consider whether--
`(i) the employer has demonstrated a substantial likelihood of
success on its contest to the citation;
`(ii) the employer will suffer irreparable harm absent a stay;
and
`(iii) a stay will adversely affect the health and safety of workers.
`(C) RULES OF PROCEDURE- The Commission shall develop rules of procedure
for conducting a hearing on a motion filed under subparagraph (A)
on an expedited basis. At a minimum, such rules shall provide:
`(i) That a hearing before an administrative law judge shall occur
not later than 15 days following the filing of the motion for
a stay (unless extended at the request of the employer), and shall
provide for a decision on the motion not later than 15 days following
the hearing (unless extended at the request of the employer).
`(ii) That a decision of an administrative law judge on a motion
for stay is rendered on a timely basis.
`(iii) That if a party is aggrieved by a decision issued by an
administrative law judge regarding the stay, such party has the
right to file an objection with the Commission not later than
5 days after receipt of the administrative law judge's decision.
Within 10 days after receipt of the objection, a Commissioner,
if a quorum is seated pursuant to section 12(f), shall decide
whether to grant review of the objection. If, within 10 days after
receipt of the objection, no decision is made on whether to review
the decision of the administrative law judge, the Commission declines
to review such decision, or no quorum is seated, the decision
of the administrative law judge shall become a final order of
the Commission. If the Commission grants review of the objection,
the Commission shall issue a decision regarding the stay not later
than 30 days after receipt of the objection. If the Commission
fails to issue such decision within 30 days, the decision of the
administrative law judge shall become a final order of the Commission.
`(iv) For notification to employees or representatives of affected
employees of requests for such hearings and shall provide affected
employees or representatives of affected employees an opportunity
to participate as parties to such hearings.'.
SEC. 704. CONFORMING AMENDMENTS.
(a) Section 17- Section 17(d) of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 666(d)) is amended to read as follows:
`(d) Any employer who fails to correct a violation designated by the
Secretary as serious, willful, or repeated and for which a citation
has been issued under section 9(a) within the period permitted for its
correction (and a stay has not been issued by the Commission under section
10(d)) may be assessed a civil penalty of not more than $7,000 for each
day during which such failure or violation continues. Any employer who
fails to correct any other violation for which a citation has been issued
under section 9(a) of this title within the period permitted for its
correction (which period shall not begin to run until the date of the
final order of the Commission in the case of any review proceeding under
section 10 initiated by the employer in good faith and not solely for
delay of avoidance of penalties) may be assessed a civil penalty of
not more than $7,000 for each day during which such failure or violation
continues.'.
SEC. 705. CIVIL PENALTIES.
(a) In General- Section 17 of the Occupational Safety and Health Act
of 1970 (29 U.S.C. 666) is amended--
(A) by striking `$70,000' and inserting `$120,000';
(B) by striking `$5,000' and inserting `$8,000'; and
(C) by adding at the end the following: `In determining whether
a violation is repeated, the Secretary shall consider the employer's
history of violations under this Act and under State occupational
safety and health plans established under section 18. If such a
willful or repeated violation caused or contributed to the death
of an employee, such civil penalty amounts shall be increased to
not more than $250,000 for each such violation, but not less than
$50,000 for each such violation, except that for an employer with
25 or fewer employees such penalty shall not be less than $25,000
for each such violation.';
(A) by striking `$7,000' and inserting `$12,000'; and
(B) by adding at the end the following: `If such a violation caused
or contributed to the death of an employee, such civil penalty amounts
shall be increased to not more than $50,000 for each such violation,
but not less than $20,000 for each such violation, except that for
an employer with 25 or fewer employees such penalty shall not be
less than $10,000 for each such violation.';
(3) in subsection (c), by striking `$7,000' and inserting `$12,000';
(4) in subsection (d), as amended, by striking `$7,000' each place
it occurs and inserting `$12,000';
(5) by redesignating subsections (e) through (l) as subsections (f)
through (m), respectively; and
(6) in subsection (j) (as redesignated by paragraph (5)), by striking
`$7,000' and inserting `$12,000;'.
(b) Inflation Adjustment- Section 17 is further amended by inserting
after subsection (d) the following:
`(e) Amounts provided under this section for civil penalties shall be
adjusted by the Secretary at least once during each 4-year period beginning
January 1, 2015, to account for the percentage increase or decrease
in the Consumer Price Index for all urban consumers during such period.'.
SEC. 706. CRIMINAL PENALTIES.
(a) In General- Section 17 (29 U.S.C. 666) (as amended by section 705)
is further amended--
(1) by amending subsection (f) to read as follows:
`(f)(1) Any employer who knowingly violates any standard, rule, or order
promulgated under section 6, or of any regulation prescribed under this
Act, and that violation caused or contributed to the death of any employee,
shall, upon conviction, be punished by a fine in accordance with title
18, United States Code, or by imprisonment for not more than 10 years,
or both, except that if the conviction is for a violation committed
after a first conviction of such person under this subsection or subsection
(i), punishment shall be by a fine in accordance title 18, United States
Code, or by imprisonment for not more than 20 years, or by both.
`(2) For the purpose of this subsection, the term `employer' means,
in addition to the definition contained in section 3, any officer or
director.';
(2) in subsection (g), by striking `fine of not more than $1,000 or
by imprisonment for not more than six months,' and inserting `fine
in accordance with title 18, United States Code, or by imprisonment
for not more than 2 years,';
(3) in subsection (h), by striking `fine of not more than $10,000,
or by imprisonment for not more than six months,' and inserting `fine
in accordance with title 18, United States Code, or by imprisonment
for not more than 5 years,';
(4) by redesignating subsections (j) through (m) as subsections (k)
through (n), respectively; and
(5) by inserting after subsection (i) the following:
`(j)(1) Any employer who knowingly violates any standard, rule, or order
promulgated under section 6, or any regulation prescribed under this
Act, and that violation causes or contributes to serious bodily harm
to any employee but does not cause death to any employee, shall, upon
conviction, be punished by a fine in accordance with title 18, United
States Code, or by imprisonment for not more than 5 years, or by both,
except that if the conviction is for a violation committed after a first
conviction of such person under this subsection or subsection (e), punishment
shall be by a fine in accordance with title 18, United States Code,
or by imprisonment for not more than 10 years, or by both.
`(2) For the purpose of this subsection, the term `employer' means,
in addition to the definition contained in section 3, any officer or
director.
`(3) For purposes of this subsection, the term `serious bodily harm'
means bodily injury or illness that involves--
`(A) a substantial risk of death;
`(B) protracted unconsciousness;
`(C) protracted and obvious physical disfigurement; or
`(D) protracted loss or impairment, either temporary or permanent,
of the function of a bodily member, organ, or mental faculty.'.
(b) Jurisdiction for Prosecution Under State and Local Criminal Laws-
Section 17 (29 U.S.C. 666) (as amended by section 705 and subsection
(a)) is further amended by adding at the end the following:
`(o) Nothing in this Act shall preclude a State or local law enforcement
agency from conducting criminal prosecutions in accordance with the
laws of such State or locality.'.
SEC. 707. PENALTIES.
Section 17(n) (as redesignated by section 706(a)(4)) (29 U.S.C. 666(n))
is amended by adding at the end the following: `Pre-final order interest
on such penalties shall begin to accrue on the date the party contests
a citation issued under this Act, and shall end upon the issuance of
the final order. Such pre-final order interest shall be calculated at
the current underpayment rate determined by the Secretary of the Treasury
pursuant to section 6621 of the Internal Revenue Code of 1986, and shall
be compounded daily. Post-final order interest shall begin to accrue
30 days after the date a final order of the Commission or the court
is issued, and shall be charged at the rate of 8 percent per year.'.
SEC. 708. EFFECTIVE DATE.
(a) General Rule- Except as provided for in subsection (b), this title
and the amendments made by this title shall take effect not later than
90 days after the date of the enactment of this Act.
(b) Exception for States and Political Subdivisions- A State that has
a State plan approved under section 18 (29 U.S.C. 667) shall amend its
State plan to conform with the requirements of this Act and the amendments
made by this Act not later than 12 months after the date of the enactment
of this Act. The Secretary of Labor may extend the period for a State
to make such amendments to its State plan by not more than 12 months,
if the State's legislature is not in session during the 12-month period
beginning with the date of the enactment of this Act. Such amendments
to the State plan shall take effect not later than 90 days after the
adoption of such amendments by such State.
END
