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S. 1145 (114th): Robert C. Byrd Mine Safety Protection Act of 2015

The text of the bill below is as of Apr 30, 2015 (Introduced).


II

114th CONGRESS

1st Session

S. 1145

IN THE SENATE OF THE UNITED STATES

April 30, 2015

(for himself 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 safety and health laws, empower miners to raise safety concerns, prevent future mine tragedies, and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Robert C. Byrd Mine Safety Protection Act of 2015.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. References.

TITLE I—Additional inspection and investigation authority

Sec. 101. Independent accident investigations.

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

Sec. 103. Designation of miner representative.

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

TITLE II—Enhanced enforcement authority

Sec. 201. Technical amendment.

Sec. 202. Procedures and criteria for determining a pattern of violations.

Sec. 203. Injunctive authority.

Sec. 204. Revocation of approval of plans.

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

Sec. 206. GAO study on MSHA underground mine plan approval.

TITLE III—Penalties

Sec. 301. Civil penalties.

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

Sec. 303. Criminal penalties.

Sec. 304. Commission review of penalty assessments.

Sec. 305. Delinquent payments and prejudgment interest.

TITLE IV—Miners’ rights and protections

Sec. 401. Protection from retaliation.

Sec. 402. Protection from loss of pay.

Sec. 403. Underground coal miner employment standard for mines with patterns of violations.

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. Study on respirable dust standards.

Sec. 505. Refresher training on miners’ rights and responsibilities.

Sec. 506. Authority to mandate additional training.

Sec. 507. Brookwood-Sago Mine Safety Grants.

Sec. 508. Certification of personnel.

Sec. 509. Electronic records requirement.

TITLE VI—Additional mine safety provisions

Sec. 601. Definitions.

Sec. 602. Assistance to States.

Sec. 603. Authorization of cooperative agreements by NIOSH Office of Mine Safety and Health.

Sec. 604. Double encumbrance; succession plan.

TITLE VII—Amendments to the Occupational Safety and Health Act of 1970

Sec. 701. Coverage of public employees.

Sec. 702. Enhanced protections from retaliation.

Sec. 703. Victims’ rights.

Sec. 704. Correction of serious, willful, or repeated violations pending contest and procedures for a stay.

Sec. 705. Conforming amendments.

Sec. 706. Civil penalties.

Sec. 707. Criminal penalties.

Sec. 708. Penalties.

Sec. 709. Effective date.

2.

References

Except 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.).

I

Additional inspection and investigation authority

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 or safety standards, or other requirements, and if there is evidence of conduct that may constitute a violation of Federal criminal law, the Secretary may refer such evidence 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.

(B)

Appointment

(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 of Health and Human Services.

(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 representative of a labor organization that represents 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 (referred to in this subsection as the Director) 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 reemploy 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 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—

(I)

the operator;

(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;

(V)

the Federal Mine Safety and Health Review Commission; or

(VI)

any other person or entity (including equipment manufacturers);

(iii)

review the determinations and recommendations of 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 (5 U.S.C. App.). 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 Safety Protection Act of 2015, 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 such 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 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 Safety Protection Act of 2015, 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)

Subpoenas; witnesses; contempt

(i)

Subpoena authority

For the purpose of making any investigation of any accident or other occurrence relating to health or safety in a coal or other mine under this paragraph, the Director shall at the request of a majority of the Panel, or upon the initiative of such Director, sign and issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and administer oaths. Witnesses summoned shall be paid the same fees and mileage that are paid witnesses in the courts of the United States.

(ii)

Contumacy

In case of contumacy or refusal to obey a subpoena served upon any person under this section, the district court of the United States for any district in which such person is found or resides or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requiring such person to appear and give testimony before the Director or Panel, or to appear and produce documents before the Director or Panel, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof.

(iii)

Additional investigative authority

In carrying out inspections and investigations under this subsection, the staff of the Director or Panel and attorneys representing the Director or Panel are authorized to question any individual privately. Under this subparagraph, any individual who is willing to speak with or provide a statement to the Director or Panel’s staff or their attorneys, may do so without the presence, involvement, or knowledge of the operator or the operator's agents or attorneys. The Director or Panel 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 or other representative.

(H)

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,.

102.

Subpoena authority and miner rights during inspections and investigations

Section 103(b) (30 U.S.C. 813(b)), as so amended, is further amended by adding at the end the following:

(4)

Additional powers

For purposes of making inspections and investigations, 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 may 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 or other representative.

.

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, disabled, killed, 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. A representative of miners shall have the right to participate in any accident investigation the Secretary initiates pursuant to subsection (b), including the right to participate in investigative interviews and to review all relevant papers, books, documents, and records produced in connection with the accident investigation, unless the Secretary, in consultation with the Attorney General, excludes representatives of miners from the investigation on the grounds that inclusion would interfere with or adversely impact a criminal investigation that is pending or under consideration..

104.

Additional amendments relating to inspections and investigations

(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..

(b)

Review of pattern of violations

Section 103(a) (30 U.S.C. 813(a)), as so amended, is further amended by inserting before the last sentence the following: Upon request by an operator or authorized representative of such operator, during the course of the inspections required to carry out the requirements of clauses (3) and (4) or (at the discretion of the Secretary) during the pre-inspection conference, the Secretary shall review with the appropriate mine officials the Secretary’s most recent determination regarding whether such operator has a pattern of violations under section 104(e) for the applicable coal or other mine..

(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, of the miners employed by, or under the direction or authority of, such operator, and shall be maintained separately for each mine and be reported at a frequency determined by the Secretary, but not less than annually. Independent contractors (within the meaning of section 3(d)) shall be responsible for reporting accidents, occupational injuries and illnesses, and man-hours worked for each mine with respect to the miners in their employ or under their direction or authority. Such independent contractors shall so report at a frequency determined by the Secretary, but not less than annually. Reports or records of operators required and submitted to the Secretary under this subsection shall be signed and certified as accurate and complete by a knowledgeable and responsible person possessing a certification, registration, qualification, or other approval under section 118. Knowingly falsifying such reports or records shall be grounds for revoking such certification, registration, qualification, or other approval under the standards established under subsection (b)(1) of such section..

(d)

Orders following an accident

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

(e)

Conflict of interest in the representation of miners

Section 103(a) (30 U.S.C. 813(a)), as amended by this section, 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..

II

Enhanced enforcement authority

201.

Technical amendment

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; and

(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,.

202.

Procedures and criteria for determining a pattern of violations

Part 104 of chapter I of title 30, Code of Federal Regulations, as revised by the Federal Mine Safety and Health Administration and published at 78 Fed. Reg. 5073 (January 23, 2013), shall have the force and effect of law and shall remain in effect subject to an Act of Congress.

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 or safety standards or regulations under this Act..

204.

Revocation of approval of plans

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

(1)

by redesignating subsection (d) as subsection (e);

(2)

in subsection (a), by striking subsection (d) and inserting subsection (e); and

(3)

by inserting after subsection (c) the following:

(d)

Revocation of approval of programs or 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 program or plan was approved have materially changed and that continued operation of such mine or an area of such mine under such program or 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 paragraph (1), 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 or an area of such mine, and to be prohibited from entering such mine or such area, until the operator has submitted and the Secretary has approved a new plan.

.

205.

Challenging a decision to approve, modify, or revoke a coal or other mine program or plan

Section 105(e) (30 U.S.C. 815(e)), as so redesignated by section 204(1), is amended by adding at the end the following: In any proceeding in which a party challenges the Secretary’s decision whether to approve, modify, or revoke a coal or other mine program or plan under this Act, the Commission 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..

206.

GAO study on MSHA underground mine plan approval

Not later than 1 year after the date of enactment of this Act, the Comptroller General of the United States shall provide a report to Congress on the timeliness of approval by the Mine Safety and Health Administration of plans, and amendments to such plans, for underground coal mines under the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.), including—

(1)

factors that contribute to any delays in the approval of such plans; and

(2)

as appropriate, recommendations for improving timeliness of plan review and for achieving prompt decisions regarding such approval.

III

Penalties

301.

Civil penalties

(a)

Targeted penalties

Section 110(b) (30 U.S.C. 820(b)) is amended by adding at the end the following:

(3)

Any person may be assessed a civil penalty of not more than $220,000 for—

(A)

any change to a ventilation system or ventilation control in a coal or other mine, where such ventilation system or control is required by a ventilation plan, safety standard, or order, and such change is made without prior approval of the Secretary and diminishes the level of protection below the minimum requirements of the approved ventilation plan or applicable safety standard or order;

(B)

a violation of a mandatory health or safety standard requiring rock dusting in a coal mine;

(C)

a violation of the prohibition under section 103 on providing advance notice of an inspection; or

(D)

a violation of a mandatory health or safety standard requiring examinations of work areas in an underground coal mine.

.

(b)

Increased civil penalties for patterns of violations

Section 110(b) (30 U.S.C. 820(b)), as so amended, is further amended by adding at the end the following:

(4)

Notwithstanding any other provision of this Act, an operator of a coal or other mine that has established a pattern of violations under section 104(e) 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.

.

(c)

Civil penalty for retaliation

Section 110(a) (30 U.S.C. 820(a)) is 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.

.

(d)

Technical correction

Section 110(a)(1) (30 U.S.C. 820(a)(1)) is amended by inserting including any regulation promulgated under this Act, after this Act,.

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

(1)

Civil penalties

Whenever an operator engages in conduct for which the operator is subject to a civil penalty under this section, any director, officer, or agent of such operator who knowingly authorizes, orders, or carries out such conduct, or who knowingly authorizes, orders, or carries out any policy or practice that results in such conduct (having reason to believe such a result would occur), shall be subject to the same civil penalty under this section as such operator.

(2)

Criminal penalties

Whenever an operator engages in conduct for which the operator is subject to a criminal penalty under subsection (d), any director, officer, or agent of such operator who knowingly authorizes, orders, or carries out such conduct, or who knowingly authorizes, orders, or carries out a policy or practice that results in such conduct (knowing that such a result would occur), shall be subject to the same penalty under paragraph (1), (2), or (3) of subsection (d) as such operator.

.

303.

Criminal penalties

(a)

In general

Section 110(d) (30 U.S.C. 820(d)) is amended to read as follows:

(d)

Criminal penalties

(1)

In general

Subject to paragraph (2), any operator shall, upon conviction, be assessed a fine of not more than $250,000, imprisoned for not more than 1 year, or both, if such operator knowingly—

(A)

violates a mandatory health or safety standard; or

(B)

violates (or fails or refuses to comply with) any order issued under section 104 or 107, or any order incorporated in a final decision issued under this Act (except an order incorporated in a decision under subsection (a)(1) or section 105(c)).

(2)

Previous conviction

Any operator who commits a violation under paragraph (1) after having been previously convicted of a violation under such paragraph and knows or has reason to know that such subsequent violation has the potential to expose a miner to a risk of serious injury, serious illness, or death, shall, upon such subsequent conviction, be fined not more than $1,000,000, or imprisoned for not more than 5 years, or both.

(3)

Significant risk of serious injury, serious illness, or death

(A)

In general

Subject to subparagraph (B), any operator shall, upon conviction, be fined not more than $1,000,000 or imprisoned for not more than 5 years, or both, if such operator recklessly exposes a miner to a significant risk of serious injury, serious illness, or death, by knowingly—

(i)

tampering with or disabling a required safety device (except with express authorization from the Secretary);

(ii)

violating a mandatory health or safety standard; or

(iii)

violating (or failing or refusing to comply with) an order issued under section 104 or 107, or any order incorporated in a final decision issued under this Act (except an order incorporated in a decision under subsection (a)(1) or section 105(c)).

(B)

Exception

Any operator who commits a violation under subparagraph (A) after having been previously convicted of a violation under such subparagraph shall, upon such subsequent conviction, be fined not more than $2,000,000, or imprisoned for not more than 10 years, or both.

(4)

Interference with employment or livelihood

(A)

In general

Any operator shall be fined under title 18, United States Code, imprisoned for not more than 5 years, or both, if such operator knowingly, and with any intent described in subparagraph (B), interferes with the lawful employment or livelihood of a person, or the spouse, sibling, child, or parent of a person, because such person, spouse, sibling, child, or parent provides information, in reasonable belief that such information is true and related to an apparent health or safety violation (or to an apparent unhealthy or unsafe condition, policy, or practice) under this Act, to an authorized representative of the Secretary, to a State or local mine safety or health officer or official, or to any other law enforcement officer or official.

(B)

Intent

The intent required under subparagraph (A) is the intent to—

(i)

retaliate against a person, spouse, sibling, child, or parent described in such subparagraph; or

(ii)

prevent such person, spouse, sibling, child, or parent from providing the information as described in such subparagraph.

.

(b)

Advance notice of inspections

(1)

In general

Section 110(e) (30 U.S.C. 820(e)) is amended to read as follows:

(e)

Advance notice of inspections

(1)

In general

Subject to paragraph (2), any person (other than the Secretary of Health and Human Services with respect to inspections under clauses (1) and (2) of section 103(a)) who knowingly, with the intent to give advance notice of an inspection conducted, or to be conducted, under this Act and thereby with the intent to impede, interfere with, or frustrate such inspection, engages in, or directs another person to engage in, conduct that a reasonable person would expect to result in such advance notice, shall be fined under title 18, United States Code, imprisoned for not more than 5 years, or both.

(2)

Offense by a miner

Any miner (other than a director, officer, or agent of the operator involved) who commits the offense described in paragraph (1) at the direction of a superior shall be fined under title 18, United States Code, imprisoned not more than 1 year, or both, unless such miner commits a subsequent offense under this subsection (without regard to whether the offense was committed at the direction of a superior) in which case such miner shall be fined for such subsequent offense 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 to the mine property, a notice stating, in a form and manner to be prescribed by the Secretary—

(1)

that it is unlawful under section 110(e) for any person (other than the Secretary of Health and Human Services with respect to inspections under clauses (1) and (2) of section 103(a)), with the intent to impede, interfere with, or frustrate an inspection conducted or to be conducted under this Act, to engage in, or direct another person to engage in, any conduct that a reasonable person would expect to result in advance notice of such inspection; and

(2)

the maximum penalties for a violation under section 110(e).

.

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.

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 payment 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 45 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(l) of the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 820(l)), as so amended, shall be calculated as beginning on the date of enactment of this Act instead of on the date of the final order.

IV

Miners’ rights and protections

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, 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 at a mine of such operator (including the spouse, sibling, child, or parent of such miner, employee, representative, or applicant, if such spouse, sibling, child, or parent is employed or applying for employment at a mine under the control of such operator), because—

(i)

such miner, employee, representative, or applicant—

(I)

has filed or made a complaint, or is about to file or make a complaint, including a complaint notifying such operator or the operator’s agent, or the representative of the miners at such mine, of an alleged danger or safety or health violation in such mine;

(II)

has instituted or caused to be instituted, or is about to institute or cause to be instituted, any proceeding under or related to this Act;

(III)

has testified, or is about to testify in any such proceeding or testify before Congress or in any Federal or State proceeding related to safety or health in a coal or other mine;

(IV)

has exercised on behalf of any individual, including such miner, employee, representative, or applicant, any such statutory right;

(V)

has reported to such operator or agent any injury or illness; or

(VI)

has refused to violate any provision of this Act, including any mandatory health or safety standard or regulation;

(ii)

such miner is the subject of medical evaluations and potential transfer under a standard published pursuant to section 101; or

(iii)

where the discharge, discrimination, or other retaliation was based on a suspicion or belief that such miner, employee, representative, or applicant engaged in, or is about to engage in, any of the activities described in clause (i).

(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, or applicant for employment at a mine of such operator, for refusing to perform the duties of a miner, other employee, or applicant if such miner, other employee, or applicant has a good-faith and reasonable belief that performing such duties would pose a safety or health hazard to such miner, other employee, or applicant, or to any other miner or employee.

(ii)

Standard

For purposes of clause (i), the circumstances causing the miner’s, other employee’s, or applicant'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, other employee, or applicant, would conclude that there is such a hazard. In order to qualify for protection under this paragraph, the miner, other employee, or applicant, 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 of an operator, representative of miners, or applicant for employment at a mine of such operator 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—

(A)

the last date on which an alleged violation of paragraph (1) occurs; or

(B)

the date on which such miner, employee, representative, or applicant 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 a complaint under paragraph (2), the Secretary shall—

(i)

forward a copy of the complaint to the respondent;

(ii)

commence an investigation within 15 days of the Secretary’s receipt of the complaint; and

(iii)

as soon as practicable after commencing the investigation under clause (ii), make the determination required under subparagraph (B).

(B)

Reinstatement

If the Secretary finds that a complaint under paragraph (2) was not frivolously brought, the Commission, on an expedited basis upon application of the Secretary, shall order the immediate reinstatement of the miner, employee, or representative described in such paragraph until there has been a final Commission order disposing of the underlying complaint. If either the Secretary or such miner, employee, or representative 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 such miner, employee, or representative 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 to provide additional information or evidence, or to 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, employee, representative, or applicant described in paragraph (2) 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 on the record (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, employee, representative, or applicant described in paragraph (2) 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, employee, or representative described in paragraph (2) 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 after the receipt of a complaint filed under paragraph (2), the Secretary shall notify, in writing, the miner, employee, representative, or applicant described in paragraph (2) of the determination of such Secretary on 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 after receiving 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 on the record (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 individual who exercises rights under any Federal or State law or common law, or under any collective bargaining agreement.

.

402.

Protection from loss of pay

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

111.

Entitlement of miners

(a)

Protection from loss of pay

(1)

Withdrawal orders

(A)

Shifts at time of order

If a coal or other mine, or an area of such mine, is closed by an order issued under section 103, 104, 107, 108, or 110, all miners working during the shift when such order was issued 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 for the period during which they are so idled, but for not more than the balance of such shift.

(B)

Subsequent shifts

If such order is not terminated prior to the working shift succeeding the shift described in subparagraph (A), all miners assigned to such succeeding shift who are idled by such order shall be entitled to compensation by the operator at their regular rates of pay for the period during which they are so idled, but not for more than one half of the hours of such shift, or 4 hours of such shift, whichever is greater.

(C)

Extended closures

If a coal or other mine, or an 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, for a shift succeeding the shift described in subparagraph (B), 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 period for which they are idled, but not for more than 60 days.

(2)

Closure in advance of order

(A)

In general

If the Secretary determines that a coal or other mine, or an area of such mine, was closed by the operator in anticipation of the issuance of an order described in paragraph (1), all miners who are idled by such closure shall be entitled, subject to subparagraph (B), 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, but not for more than 60 days.

(B)

Exception

The entitlement under subparagraph (A) shall not apply if an operator promptly withdraws miners upon discovery of a hazard and notifies the Secretary, where required and within the prescribed time period.

(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.

(b)

Enforcement

(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 on the record 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.

(c)

Expedited Review

If an order is issued that results in a payment to a miner under subsection (a), the operator shall have the right to an expedited review before the Commission in the same manner as the procedure under section 316(b)(2)(G)(ii) (including the deadlines under such section).

.

403.

Underground coal miner employment standard for mines with patterns of violations

Title I (30 U.S.C. 811 et seq.) is further amended by adding at the end the following:

117.

Underground coal miner employment standard for mines with patterns of violations

(a)

In general

For the purpose of ensuring the health and safety of miners and the right of miners to raise health or safety concerns, an operator of an underground coal mine who has received notice of a pattern of violations under section 104(e) in such mine, for 3 years after receipt of such notice, may not discharge or constructively discharge a miner employed at such mine without reasonable grounds based on a failure of such miner to satisfactorily perform the duties required for work as a miner, including compliance with the provisions of this Act, regulations promulgated under this Act, mandatory health or safety standards under any other law, or any other legitimate business reason, if—

(1)

the miner is paid on an hourly basis; and

(2)

the miner has completed the employer’s probationary period, which in no case shall exceed 6 months.

(b)

Cause of action

A miner aggrieved by a violation of subsection (a) may file a complaint in the United States district court in the district where the mine is located not later than 1 year after such violation.

(c)

Remedies

For a miner who prevails under subsection (b), the appropriate United States district court shall provide remedies to further the objectives of this Act, which may include reinstatement of such miner to the former position of such miner with back pay and compensatory damages. Such remedies shall include reasonable attorneys' fees and costs.

(d)

Pre-Dispute waiver prohibited

The right of a miner to a cause of action under this section may not be waived with respect to any dispute that has not arisen as of the time of the waiver.

(e)

Construction

Nothing in this section shall be construed to limit the availability of rights and remedies of miners under any other State or Federal law or a collective bargaining agreement.

.

V

Modernizing health and safety standards

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 (B), each operator of an underground coal mine shall implement a communication program at the underground coal mine to ensure that each miner (prior to traveling to or arriving at the work area of such miner and commencing the assigned tasks of such miner) is orally briefed on and made aware of—

(i)

any conditions that are hazardous, or that violate a mandatory health or safety standard or a plan approved under this Act, where the miner is expected to work or travel; and

(ii)

the general conditions of that miner’s assigned working section or other area where the miner is expected to work or travel.

(B)

Not later than 180 days after the date of enactment of the Robert C. Byrd Mine Safety Protection Act of 2015, the Secretary shall promulgate interim final rules implementing the requirements of subparagraph (A).

(C)

Not later than 2 years after the promulgation of the interim final rules under subparagraph (B), the Secretary shall issue a final rule implementing the requirements of subparagraph (A).

.

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 and representative samples that shall measure the total incombustible content of combined coal dust, rock dust, and other dust in such mine to ensure that the coal dust is kept below explosive levels through the appropriate application of rock dust.

(B)

Direct reading monitors

In order to ensure timely assessment and compliance, the Secretary shall, not later than 180 days after the date of enactment of the Robert C. Byrd Mine Safety Protection Act of 2015, require operators to measure total incombustible content (or an equivalent measure of explosibility) in samples of combined coal dust, rock dust, and other dust, using direct reading monitors that the Secretary has approved for use in an underground coal mine, such as coal dust explosibility monitors.

(C)

Regulations

The Secretary shall, not later than 180 days after the date of enactment of the Robert C. Byrd Mine Safety Protection Act of 2015, promulgate an interim final rule that prescribes methods for operator sampling of total incombustible content (or an equivalent measure of explosibility) in samples of combined coal dust, rock dust, and other dust using direct reading monitors and that 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 Safety Protection Act of 2015, 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.

(3)

Limitation

Until the Secretary promulgates a final rule under paragraph (4)(B), any measurement taken by a direct reading monitor described in paragraph (2)(B) shall not be admissible to establish a violation in an enforcement action under this Act.

(4)

Report and rulemaking authority

(A)

Report

Not later than 2 years after the date of enactment of the Robert C. Byrd Mine Safety Protection Act of 2015, 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—

(i)

regarding whether any direct reading monitor described in paragraph (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 monitor, or additional verification regarding reliability and accuracy, would be needed for enforcement purposes; and

(ii)

identifying any limitations or impediments for such use in underground coal mines.

(B)

Authority

If the Secretary determines, following a report under subparagraph (A) (or an update to such report), that any direct reading monitor described in paragraph (2)(B) is sufficiently reliable and accurate for the enforcement of mandatory health or safety standards under this Act, the Secretary shall, after the submission of such report or update, promulgate a final rule authorizing the use of such direct reading monitor for purposes of compliance with, and enforcement of, such standards and authorizing the use of other methods for determining total incombustible content. Such final rule shall specify mandatory operator sampling locations, methods, and intervals.

.

(b)

Rock dust recordkeeping

Section 304 (30 U.S.C. 864) is further amended—

(1)

by redesignating subsection (e) as subsection (f);

(2)

by inserting after subsection (d) the following:

(e)

Rock dust recordkeeping

The operator of each coal mine shall maintain and continuously update a record of the amount of rock dust purchased for each such mine.

; and

(3)

in subsection (f), as so redesignated, by striking Subsection (b) through (d) and inserting Subsections (b) through (e).

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)

General regulations

Not later than 1 year after the date of enactment of the Robert C. Byrd Mine Safety Protection Act of 2015, the Secretary shall, following consultation with the Director of the National Institute for Occupational Safety and Health, promulgate regulations requiring that each operator of an underground coal mine install atmospheric monitoring systems that—

(A)

protect miners where the miners normally work and travel;

(B)

assist in mine emergency response and the conduct of accident investigations;

(C)

provide real-time information regarding methane, oxygen, and carbon monoxide levels, and airflow direction, as appropriate, with sensing, annunciating, and recording capabilities; and

(D)

can, to the maximum extent practicable, withstand explosions and fires.

(2)

Additional regulations

The regulations promulgated under paragraph (1) shall, if determined appropriate after an evaluation by the Secretary, include—

(A)

the installation of atmospheric monitoring and recording devices for mining equipment;

(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; and

(C)

the implementation of other technologies available to conduct continuous atmospheric monitoring.

.

504.

Study on respirable dust standards

(a)

Study

Beginning on February 1, 2017, the Secretary of Labor shall undertake a retrospective study on the effectiveness of the final rule of the Department of Labor entitled Lowering Miners’ Exposure to Respirable Coal Mine Dust, Including Continuous Personal Dust Monitors, published at 79 Fed. Reg. 24814 (May 1, 2014), and evaluate the data regarding the use of continuous personal dust monitors, to determine whether—

(1)

the 1.5 mg/m³ respirable dust standard that was included in such final rule should be further lowered to better protect the health of miners;

(2)

the frequency of sampling continuous personal dust monitors should be increased;

(3)

engineering controls and work practices used by mine operators to achieve and maintain the required respirable coal mine dust levels should be modified; and

(4)

samples taken on shifts longer than 8 hours should be converted to an 8-hour equivalent concentration to protect miners who work longer shifts.

(b)

Report

(1)

Initial report

Upon beginning the study under subsection (a), the Secretary of Labor shall transmit a copy of such study to Congress, notifying Congress that such study has commenced.

(2)

Annual reports

For each year after the commencement of the study under subsection (a) and until such study is completed, the Secretary of Labor shall transmit a report to Congress on the progress of such study.

(3)

Final report

Upon completion of the study under subsection (a), the Secretary of Labor shall submit a final report of such study to Congress.

505.

Refresher training on miners’ 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 no less than 9 hours of refresher training, no less frequently than once every 12 months. 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, and shall be through a program of instruction developed by the Secretary and delivered by an employee of the Administration (or a trainer approved by the Administration) that is a party independent from the operator;

.

(b)

National hazard reporting hotline

Section 115 (30 U.S.C. 825), as so amended, is further amended—

(1)

by redesignating subsections (c) through (e) as subsections (d) through (f), respectively; and

(2)

by inserting after subsection (b) the following:

(c)

Any health and safety training program of instruction provided under this section shall include distribution to miners of information regarding the rights of such miners under this Act and a toll-free hotline telephone number, which the Secretary shall maintain to receive complaints from miners and the public regarding hazardous conditions, discrimination, safety or health violations, or other mine safety or health concerns. Information regarding such hotline shall be provided in a portable, convenient format, such as a durable wallet card, to enable miners to keep such information on their person.

.

(c)

Timing of initial statutory rights training

Notwithstanding section 115 of the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 825) (as so amended) 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.

506.

Authority to mandate additional training

(a)

In general

Section 115 (30 U.S.C. 825), as so amended, is further amended—

(1)

by redesignating subsections (e) and (f) (as so redesignated) as subsections (f) and (g), respectively; and

(2)

by inserting after subsection (d) (as so redesignated) 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;

(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; or

(iii)

an operator has a history of failing to adequately train miners, as required by this Act or the regulations promulgated under this Act; and

(B)

additional training would benefit the health or safety of miners at the mine.

(2)

Withdrawal order

If the operator fails to provide training ordered under paragraph (1) within the specified time provided by the Secretary under such paragraph, the Secretary shall issue an order requiring such operator to cause all affected persons, except 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).

507.

Brookwood-Sago Mine Safety Grants

Section 14(e)(2) of the Mine Improvement and New Emergency Response Act of 2006 (30 U.S.C. 965(e)(2)) is amended by inserting before the period , and underground mine rescue training activities that simulate mine accident conditions.

508.

Certification of personnel

(a)

In general

Title I (30 U.S.C. 811 et seq.), as so amended, is further amended by adding at the end the following:

118.

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 other 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 Safety Protection Act of 2015, the Secretary shall issue mandatory standards to establish—

(A)

requirements for the certification, registration, qualification, or other approval described in subsection (a), including the experience, examinations, and references that may be required as appropriate;

(B)

time limits for such certification, registration, qualification, or other approval, 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—

(i)

the Secretary (or a State agency, as applicable) responds to requests for revocation; and

(ii)

the names of individuals, whose certification, registration, qualification, or other approval has been revoked, are provided to and maintained by the Secretary, and are made available to appropriate State agencies through an electronic database.

(2)

Coordination with States

In developing the standards required under paragraph (1), 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) shall 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 Safety Protection Act of 2015, 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 certification programs that meet the standards established under this section.

(2)

Use

Amounts collected under paragraph (1) shall only be available to the Secretary, in accordance with paragraph (3), for making expenditures to carry out the certification programs established under this section.

(3)

Authorization of appropriations

In addition to funds authorized to be appropriated under section 114, there is authorized to be appropriated to the Secretary for each fiscal year in which fees are collected under paragraph (1) an amount equal to the total amount of fees collected under paragraph (1) during that fiscal year. Such amounts are authorized to remain available until expended. If on the first day of a fiscal year a regular appropriation to the Administration has not been enacted, the Administration shall continue to collect fees (as offsetting collections) under this subsection at the rate in effect during the preceding fiscal year, until 5 days after the date on which such regular appropriation is enacted.

(4)

Collecting and crediting of fees

Fees authorized and collected under this subsection shall be deposited and credited as offsetting collections to the account providing appropriations to the Administration and shall not be collected for any fiscal year except to the extent and in the amount provided in advance in appropriation 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, registration, qualification, or other approval that 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 such person 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 (l) as paragraphs (1) through (10), respectively.

509.

Electronic records requirement

Section 103 (30 U.S.C. 802) is amended by adding at the end the following:

(l)

Electronic records

Not later than 180 days after the date of enactment of the Robert C. Byrd Mine Safety Protection Act of 2015, the Secretary shall promulgate regulations requiring that mine operators retain records and data required by this Act, or otherwise required by the Secretary, that are created, stored, or transmitted in electronic form. Such records shall include records pertaining to miner safety and health, tracking and communications, atmospheric monitoring of methane, carbon monoxide, oxygen, coal dust and other mine conditions, equipment usage history and operating parameters, equipment calibration and maintenance, and other information relevant to compliance with Federal mine health or safety laws and regulations. Not later than 2 years after the date of enactment of such Act, the Secretary shall promulgate a regulation regarding the minimum necessary capabilities of equipment to retain, store, and recover data created or transmitted in electronic form.

.

VI

Additional mine safety provisions

601.

Definitions

(a)

Definition of operator

Section 3(d) (30 U.S.C. 802(d)) is amended to read as follows:

(d)

operator means—

(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 imminent danger

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

(1)

by striking means the and inserting

means—

(1)

the

;

(2)

by striking the semicolon at the end and inserting ; or; and

(3)

by adding at the end the following:

(2)

the existence of multiple conditions or practices (regardless of whether related to each other) that, when considered in the aggregate, could reasonably be expected to cause death or serious physical harm before such conditions or practices can be abated;

.

(d)

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.

(e)

Definition of significant and substantial violations

Section 3 (30 U.S.C. 802), as so amended, 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).

.

602.

Assistance to States

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

(1)

in subsection (a)—

(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 118.

; and

(2)

in subsection (h), by striking $3,000,000 for fiscal year 1970, and $10,000,000 annually in each succeeding fiscal year and inserting $20,000,000 for each fiscal year.

603.

Authorization of cooperative agreements by NIOSH Office of Mine Safety and Health

Section 22(h)(3) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 671(h)(3)) is amended—

(1)

in subparagraph (B), by striking and at the end;

(2)

by redesignating subparagraph (C) as subparagraph (D); and

(3)

by inserting after subparagraph (B) the following:

(C)

enter into cooperative agreements or contracts with international institutions and private entities to improve mine safety and health through the development and evaluation of new interventions; and

.

604.

Double encumbrance; succession plan

(a)

Authorization

Notwithstanding any personnel procedures, rules, or guidance, the Secretary of Labor is authorized to double encumber a position or utilize early replacement hiring for authorized representatives and technical specialist positions in the Mine Safety and Health Administration. The number of such positions shall be consistent with the staffing requirements set forth in the succession plan under subsection (b).

(b)

Succession Plan

(1)

In general

Not later than 90 days after the date of enactment of this Act, the Secretary of Labor shall develop and provide to Congress a succession plan for the Mine Safety and Health Administration for the next 5 years to assure timely replacement of qualified employees critical to maintaining the agency’s mission.

(2)

Contents of plan

The succession plan developed under this subsection shall—

(A)

estimate employee turnover for each year;

(B)

set benchmarks for maximum allowable percentage of vacancies, and a maximum ratio of trainees to authorized representatives;

(C)

utilize double encumbrance or early replacement hiring for authorized representatives and technical specialists;

(D)

implement tracking systems to assure that staffing levels of authorized representatives and technical specialists do not fall below the minimum required to conduct necessary inspections, thoroughly review mine plans, and conduct accident and special investigations; and

(E)

identify resources necessary to implement such plan.

(3)

Updates to plan

The succession plan under this subsection shall be updated biennially.

VII

Amendments to the Occupational Safety and Health Act of 1970

701.

Coverage of public employees

(a)

In general

Section 3(5) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 652(5)) is amended by striking but does not include and all that follows through the period at the end and inserting including the United States, a State, or a political subdivision of a State..

(b)

Construction

Nothing in this Act, or the amendments made by this Act, shall be construed to affect the application of section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 667).

702.

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—

(A)

such

;

(2)

by striking this Act or has and inserting the following:

this Act;

(B)

such employee has

;

(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.

(5)

Investigation

(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)

shall include—

(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.

(7)

Hearing

(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).

(B)

Procedures

(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.

(11)

Judicial review

(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).

(13)

Burdens of proof

(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.

(14)

Relief

(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.

(17)

Election of venue

(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.

(B)

Referrals

If—

(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).

703.

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:

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.

.

704.

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 or 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.

.

705.

Conforming amendments

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.

.

706.

Civil penalties

(a)

In General

Section 17 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 666) is amended—

(1)

in subsection (a)—

(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.;

(2)

in subsection (b)—

(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 section 705, 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 of such Act 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, 2016, to account for the percentage increase or decrease in the Consumer Price Index for all urban consumers during such period.

.

707.

Criminal penalties

(a)

In General

Section 17 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 666) (as amended by sections 705 and 706) 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, by imprisonment for not more than 10 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 (i), punishment shall be by a fine in accordance title 18, United States Code, 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, 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, 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 of such Act (29 U.S.C. 666) (as amended by this Act) 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.

.

708.

Penalties

Section 17(n) of the Occupational Safety and Health Act of 1970 (as redesignated by section 707(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..

709.

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

The following are exceptions to the effective date described in subsection (a):

(1)

A State that has a State plan approved under section 18 of the Occupational Safety and Health Act of 1970 (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.

(2)

This Act and the amendments made by this Act shall take effect not later than 36 months after the date of the enactment of this Act with respect to a workplace of a State, or a political subdivision of a State, that does not have a State plan approved under such section 18 (29 U.S.C. 667).