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Page:United States Statutes at Large Volume 91.djvu/1339

 PUBLIC LAW 95-164—NOV. 9, 1977

91 STAT. 1305

plaint. If upon such investigation, the Secretary determines that the Complaint, filing provisions of this subsection have been violated, he shall immediately with Commission. file a complaint with the Commission, with service upon the alleged violator and the miner, applicant for employment, or representative of miners alleging such discrimination or interference and propose an order granting appropriate relief. The Commission shall afford an Hearing. opportunity for a hearing (in accordance with section 554 of title 5, Findings, order. United States Code, but without regard to subsection (a)(3) of such Relief. 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 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 as the Commission deems appropriate, including, but not limited to, the rehiring or reinstatement of the miner to his former position with back pay and interest. The complaining miner, applicant, or representative of miners may present additional evidence on his own behalf during any hearing held pursuant to his paragraph. "(3) Within 90 days of the receipt of a complaint filed under para- Violations. graph (2), the Secretary shall notify, in writing, the miner, appli- Determination, cant for employment, or representative of miners of his determination notification. whether a violation has occurred. 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 of notice of the Secretary's determination, to file an action in his own behalf before the Commission, charging discrimination or interference in violation of paragraph (1). The Commission shall afford an opportunity Hearing. -• for a hearing (in accordance with section 554 of title 5, United States Findings, order. Code, but without regard to subsection (a)(3) of such section), and Relief. 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, including, but not limited to, an order requiring the rehiring or reinstatement of the miner to his former position with back pay and interest or such remedy as may be appropriate. Such order shall become final 30 days after its issuance. "Whenever an order is issued sustaining the complainant's Proceedings charges under this subsection, a sum equal to the aggregate amount expenses, of all costs and expenses (including attorney's fees) as determined by assessment. the Commission to have been reasonably incurred by the miner, applicant for employment or representative of miners for, or in connection with, the institution and prosecution of such proceedings shall be assessed against the person committing such violation. Proceedings under this section shall be expedited by the Secretary and the Commission. Any order issued by the Commission under this paragraph Judicial review. 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). "(d) If, within 30 days of receipt thereof, an operator of a coal or Contestations, other mine notifies the Secretary that he intends to contest the issuance advisement to or modification of an order issued under section 104, or citation or a Commission. notification of proposed assessment of a penalty issued under subsec- Hearing. tion (a) or (b) of this section, or the reasonableness of the length of Findings, order. abatement time fixed in a citation or modification thereof issued Relief. under section 104, or any miner or representative of miners notifies the Secretary of an intention to contest the issuance, modification, or termination of any order issued under section 104, or the reasonable-

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Page:United States Statutes at Large Volume 91.djvu/1340

 91 STAT. 1306

Participation!, procedures.

PUBLIC LAW 95-164—NOV. 9, 1977 ness of the length of time set for abatement by a citation or modification thereof issued under section 104, the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearin;^ (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 on findings of fact, affirming, modifying, or vacating the Secretary's citation, order, or proposed penalty, or directing other appropriate relief. Such order shall become final 30 days after its issuance. The rules of procedure prescribed by the Commission shall provide affected miners or representatives of affected miners an opportunity to participate as parties to hearings under this section. The Commission shall take whatever action is necessary to expedite proceedings for hearing appeals of orders issued under section 104. u JUDICIAL

Petition, filing.

30 USC 816.

Copy.

Jurisdiction.

Findings.

Modified or new findings, filing.

REVIEW

"SEC. 106. (a)(1) Any person adversely affected or aggrieved by an order of the Commission issued under this Act may obtain a review of such order in any United States court of appeals for the circuit in which the violation is alleged to have occurred or in the United States Court of Appeals for the District of Columbia Circuit, by filing in such court within 30 days following the issuance of such order a written petition praying that the order be modified or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the Commission and to the other parties, and thereupon the Commission shall file in the court the record in the proceeding as provided in section 2112 of title 28, United States Code. Upon such filing, the court shall have exclusive jurisdiction of the proceeding and of the questions determined therein, and shall have the power to make and enter upon the pleadings, testimony, and proceedings set forth in such record a decree affirming, modifying, or setting aside, in whole or in part, the order of the Commission and enforcing the same to the extent that such order is affirmed or modified. No objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. If any party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Commission, the court may order such additional evidence to be taken before the Commission and to be made a part of the record. The Commission may modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file such modified or new find,ings, which findings with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. The Commission may modify or set aside its original order by reason of such modified or new findings of fact. Upon the filing of the record after such remand proceedings, the jurisdiction of the court shall be exclusive and its judgment and degree shall be final, except that the same shall be subject to review by the Supreme Court of the United States, as provided in section 1254 of title 28, United States Code. Petitions filed under this subsection shall be heard expeditiously.

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Page:United States Statutes at Large Volume 91.djvu/1341

 PUBLIC LAW 95-164—NOV. 9, 1977

91 STAT. 1307

"(2) In the case of a proceeding to review any order or decision issued by the Commission under this Act, except an order or decision pertaining to an order issued under section 107(a) or an order or decision pertaining to a citation issued under section 104(a) or (f), the court may, under such conditions as it may prescribe, grant such temporary relief as it deems appropriate pending final determination of the proceeding, if— "(A) all parties to the proceeding have been notified and given an opportunity to be heard on a request for temporary relief; "(B) the person requesting such relief shows that there is a substantial likelihood that he will prevail on the merits of the final determination of the proceeding; and "(C) such relief will not adversely affect the health and safety of miners in the coal or other mine. "(3) In the case of a proceeding to review any order or decision issued by the Panel under this Act, the court may, under such conditions as it may prescribe, grant such temporary relief as it deems appropriate pending final determination of the proceeding, if— "(A) all parties to the proceeding have been notified and given an opportunity to be heard on a request for temporary relief; and "(B) the person requesting such relief shows that there is a substantial likelihood that he will prevail on the merits of the final determination of the proceeding. "(b) The Secretary may also obtain review or enforcement of any final order of the Commission by filing a petition for such relief in the United States court of appeals for the circuit in which the alleged violation occurred or in the Court of Appeals for the District of Columbia Circuit, and the provisions of subsection (a) shall govern such proceedings to the extent applicable. If no petition for review, as provided in subsection (a), is filed within 30 days after issuance of the Commission's order, the Commission's findings of fact and order shall be conclusive in connection with any petition for enforcement which is filed by the Secretary after the expiration of such 30-day period. In any such case, as well as in the case of a noncontested citation or notification by the Secretary which has become a final order of the Commission under subsection (a) or (b) of section 105, the clerk of the court, unless otherwise ordered by the court, shall forthwith enter a decree enforcing the order and shall transmit a copy of such decree to the Secretary and the operator named in the petition. In any contempt proceeding brought to enforce a decree of a court of appeals entered pursuant to this subsection or subsection (a), the court of appeals may assess the penalties provided in section 110, in addition to invoking any other available remedies. "(c) The commencement of a proceeding under this section shall not, unless specifically ordered by the court, operate as a stay of the order or decision of the Commission or the Panel.

Temporary relief,

((PROCEDURES

Notice and hearing.

Temporary relief,

Notice and hearing.

Petition for relief,

Enforcement decree,
 * ^°Py-

TO COUNTERACT DANGEROUS CONDITIONS

"SEC. 107. (a) If, upon any inspection or investigation of a coal or Withdrawal other mine which is subject to this Act, an authorized representative order. of the Secretary finds that an imminent danger exists, such representa- 30 USC 817. tive shall determine the extent of the area of such mine throughout which the danger exists, and issue an order requiring the operator of such mine to cause all persons, except those referred to in section 104

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Page:United States Statutes at Large Volume 91.djvu/1342

 91 STAT. 1308 .-V.^:'

Notice to mine operators. Copy, filing.

Further investigation.

Public hearing. Findings, decision.

Orders, contents.

Relief from orders, application. Hearing. Order.

-

PUBLIC LAW 95-164—NOV. 9, 1977 (c), to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of the Secretary determines that such imminent danger and the conditions or practices which caused such imminent danger no longer exist. The issuance of an order under this subsection shall not preclude the issuance of a citation under section 104 or the proposing of a penalty under section 110. "(b)(1) If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds (A) that conditions exist therein which have not yet resulted in an imminent danger, (B) that such conditions cannot be effectively abated through the use of existing technolo^, and (C) that reasonable assurance cannot be provided that the continuance of mining operations under such conditions will not result in an imminent danger, he shall determine the area throughout which such conditions exist, and thereupon issue a notice to the operator of the mine or his a^ent of such conditions, and shall file a copy thereof, incorporating his findings therein, with the Secretary and with the representative of the miners of such mine. Upon receipt of such copy, the Secretary shall cause such further investigation to be made as he deems appropriate, including an opportunity for the operator or a representative of the miners to present information relating to such notice. " (2) Upon the conclusion of an investigation pursuant to paragraph (1), and an opportunity for a public hearing upon request by any interested party, the Secretary shall make findings of fact, and shall by decision incorporating such findings therein, either cancel the notice issued under this subsection or issue an order requiring the operator of such mine to cause all persons in the area affected, except those persons leferred to in subsection (c) of section 104 to be withdrawn from, and be prohibited from entering, such area until the Secretary, after a public hearing affording all interested persons an opportunity to present their views, determines that such conditions have been abated. Any hearing under this paragraph shall be of record and shall be subject to section 554 of title 5 of the United States Code. "(c) Orders issued pursuant to subsection (a) shall contain a detailed description of the conditions or practices which cause and constitute an imminent danger and a description of the area of the coal or other mine from which persons must be withdrawn and prohibited from entering. "(d) Each finding made and order issued under this section shall be given promptly to the operator of the coal or other mine to which it pertains by the person making such finding or order, and all of such findings and orders shall be in writing, and shall be signed by the person making them. Any order issued pursuant to subsection (a) may be modified or terminated by an authorized representative of the Secretary. Any order issued under subsection (a) or (b) shall remain in effect until vacated, modified, or terminated by the Secretary, or modified or vacated by the Commission pursuant to subsection (e^, or by the courts pursuant to section 106(a). "(e)(1) Any operator notified of an order under this section or any representative of miners notified of the issuance, modification, or termination of such an order may apply to the Commission within 30 days of such notification for reinstatement, modification or vacation of such order. The Commission shall forthwith afford an opportunity for a hearing (in accordance with section 554 of title 5, United States Code, but without regard to subsection (a)(3) of such section) and

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Page:United States Statutes at Large Volume 91.djvu/1343

 PUBLIC LAW 95-164—NOV. 9, 1977

91 STAT. 1309

thereafter shall issue an order, based upon findings of fact, vacating, affirming, modifying, or terminating the Secretary's order. The Commission and the courts may not grant temporary relief from the issuance of any order under subsection (a). "(2) The Commission shall take whatever action is necessary to expedite proceedings under this subsection. "INJUNCTIONS

"SEC. 108. (a)(1) The Secretary may institute a civil action for 30 USC 818. relief, including a permanent or temporary injunction, restraining order, or any other appropriate order in the district court of the United States for the district in which a coal or other mine is located or in which the operator of such mine has his principal office, whenever such operator or his agent— "(A) violates or fails or refuses to comply with any order or decision issued under this Act, "(B) interferes with, hinders, or delays the Secretary or his authorized representative, or the Secretary of Health, Education, and Welfare or his authorized representative, in carrying out the provisions of this Act, "(C) refuses to admit such representatives to the coal or other ,., orf,.M mine, "(D) re fuses to permit the inspection of the coal or other mine, or the investigation of an accident or occupational disease occurring in, or connected with, such mine, " (E) refuses to furnish any information or report requested by the Secretary or the Secretary of Health, Education, and Welfare in furtherance of the provisions of this Act, or " (F) refuses to permit access to, and copying of, such records as the Secretary or the Secretary of Health, Education, and Welfare determines necessary in carrying out the provisions of this Act. " (2) The Secretary may institute a civil action for relief, including permanent or temporary injunction, restraining order, or any other appropriate order in the district court of the United States for the district in which the coal or other mine is located or in which the operator of such mine has his principal office whenever the Secretary believes that the operator of a coal or other mine is engaged in a pat., - <._ tern of violation of the mandatory health or safety standards of this Act, which in the judgment of the Secretary constitutes a continuing hazard to the health or safety of miners. "(b) In any action brought under subsection (a), the court shall have jurisdiction to provide such relief as may be appropriate. In the case of an action under subsection (a)(2), the court shall in its order require such assurance or affirmative steps as it deems necessary to assure itself that the protection afforded to miners under this Act shall be provided by the operator. Temporary restraining orders shall be issued in accordance with rule 65 of the Federal Eules of Civil Procedure, as amended, except that the time limit in such orders, when 28 USC app. issued without notice, shall be seven days from the date of entry. Except as otherwise provided herein, any relief granted by the court to enforce any order under paragraph (1) of subsection (a) shall continue in effect until the completion or final termination of all proceedings for review of such order under this title, unless prior thereto, the district court granting such relief sets it aside or modifies it. In any

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Page:United States Statutes at Large Volume 91.djvu/1344

 PUBLIC LAW 95-164--NOV. 9, 1977

91 STAT. 1310

action instituted under this section to enforce an order or decision issued by the Commission or the Secretary after a public hearing in accordance with section 554 of title 5 of the United States Code, the findings of the Commission or the Secretary, as the case may be, if Supported by substantial evidence on the record considered as a whole, shall be conclusive. " P O S T I N G o r ORDERS AND DECISIONS Mine office.

30 USC 819. Bulletin board, maintenance.

Distribution.

Availability for public inspection. Compliance.

Mine operators, filing.

Health and safety officers, mation.

"SEC. 109. (a) At each coal or other mine there shall be maintained an office with a conspicuous sign designating it as the office of such mine. There shall be a bulletin board at such office or located at a conspicuous place near an entrance of such mine, in such manner that orders, citations, notices and decisions required by law or regulation to be posted, may be posted thereon, and be easily visible to all persons desiring to read them, and be protected against damage by weather and against unauthorized removal. A copy of any order, citation, notice or decision required by this Act to be given to an operator shall be delivered to the office of the affected mine, and a copy shall be immediately posted on the bulletin board of such mine by the operator or his agent. "(b) The Secretary shall (1) cause a copy of any order, citation, notice, or decision required by this Act to be given to an operator to be mailed immediately to a representative of the miners in the affected coal or other mine, and (2) cause a copy thereof to be mailed to the )ublic official or agency of the State charged with administering State aws, if any, relating to health or safety in such mine. Such notice, order, citation, or decision shall be available for public inspection. "(c) In order to insure prompt compliance with any notice, order, citation, or decision issued under this Act, the authorized representative of the Secretary may deliver such notice, order, citation, or decision to an agent of the operator, and such agent shall immediately take appropriate measures to insure compliance with such notice, order, citation, or decision. "(d) Each operator of a coal or other mine subject to this Act shall file with the Secretary the name and address of such mine and the name and address of the person who controls or operates the mine. Any revisions in such names or addresses shall be promptly filed with the Secretary. Each operator of a coal or other mine subject to this Act shall designate a responsible official at such mine as the principal officer in charge of health and safety at such mine, and such official shall receive a copy of any notice, order, citation, or decision issued under this Act affecting such mine. In any case where the mine is subject to the control of any person not directly involved in the daily operations of the coal or other mine, there shall be filed with the Secretary the name and address of such person and the name and address of a principal official of such person who shall have overall responsibility for the conduct of an effective health and safety program at any coal or other mine subject to the control of such person, and such official shall receive a copy of any notice, order, citation, or decision issued affecting any such mine. The mere designation of a health and safety official under this subsection shall not be construed as making such official subject to any penalty under this Act.

f

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Page:United States Statutes at Large Volume 91.djvu/1345

 PUBLIC LAW 95-164—NOV. 9, 1977 li

91 STAT. 1311

PENALTIES

"SEC. 110. (a) The operator of a coal or other mine in which a viola- 30 USC 820. tion occurs of a mandatory health or safety standard or who violates any other provision of this Act, shall be assessed a civil penalty by the Secretary which penalty shall not be more than $10,000 for each such violation. Each occurrence of a violation of a mandatory health or safety standard may constitute a separate offense. "(b) Any operator who fails to correct a violation for which a citation has been issued under section 104(a) within the period permitted for its correction may be assessed a civil penalty of not more than $1,000 for each day during which such failure or violation continues. "(c) Whenever a corporate operator violates a mandatory health or safety standard or knowingly violates or fails or refuses to comply with any order issued under this Act or any order incorporated in a final decision issued under this Act, except an order incorporated in a decision issued under subsection (a) or section 105(c), any director, officer, or agent of such corporation who knowingly authorized, ordered, or carried out such violation, failure, or refusal shall be subject to the same civil penalties, fines, and imprisonment that may be imposed upon a person under subsections (a) and (d). "(d) Any operator who willfully violates a mandatory health or safety standard, or knowingly violates or fails or refuses to comply with any order issued under section 104 and section 107, or any order , incorporated in a final decision issued under this title, except an order "' incorporated in a decision under subsection (a) or section 105(c), shall, upon conviction, be punished by a fine of not more than $25,000, or by imprisonment for not more than one year, or by both, except that if the conviction is for a violation committed after the first conviction of such operator under this Act, punishment shall be by a fine of not more than $50,000, or by imprisonment for not more than five years, or both. "(e) Unless otherwise authorized by this Act, any person who gives advance notice of any inspection to be conducted under this Act shall, upon conviction, be punished by a fine of not more than $1,000 or by imprisonment for not more than six months, or both. "(f) Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this Act shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than five years, or both. "(g) Any miner who willfully violates the mandatory safety standards relating to smoking or the carrying of smoking materials, matches, or lighters shall be subject to a civil penalty assessed by the Commission, which penalty shall not be more than $250 for each occurrence of such violation. "(h) Whoever knowingly distributes, sells, offers for sale, introduces, or delivers in commerce any equipment for use in a coal or other mine, including, but not limited to, components and accessories of such equipment, which is represented as complying with the provisions of this Act, or with any specification or regulation of the Secretary applicable to such equipment, and which does not so comply, shall, upon conviction, be subject to the same fine and imprisonment that may be imposed upon a person under subsection (f) of this section. " (i) The Commission shall have authority to assess all civil penalties Assessment provided in this Act. In assessing civil monetary penalties, the Com- authority, mission shall consider the operator's history of previous violations,

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Page:United States Statutes at Large Volume 91.djvu/1346

 91 STAT. 1312

PUBLIC LAW 95-164—NOV. 9, 1977

the appropriateness of such penalty to the size of the business of the '/2?:WJ operator charged, whether the operator was negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting Summary review, to achieve rapid compliance after notification of a violation. In proposing civil penalties under this Act, the Secretary may rely upon a summary review of the information available to him and shall not be required to make findings of fact concerning the above factors. Payment. "(j) Civil penalties owed under this Act shall be paid to the Secretary for deposit into the Treasury of the United States and shall accrue to the United States and may be recovered in a civil action in the name of the United States brought in the United States district court for the district where the violation occurred or where the operInterest rate. ator has its principal office. Interest at the rate of 8 percent per annum shall be charged against a person on any final order of the Commission, or the court. Interest shall begin to accrue 30 days after the issuance of such order. " (k) No proposed penalty which has been contested before the Commission under section 105(a) shall be compromised, mitigated, or settled except with the approval of the Commission. No penalty assessment which has become a final order of the Commission shall be compromised, mitigated, or settled except with the approval of the court. "(1) The provisions of this section shall not be applicable with 30 USC 901. respect to title IV of this Act. uENTITLEMENT OF MINERS

Compensation.

30 USC 821.

Public hearing.

Complaint, filing.

"SEC. 111. If a coal or other mine or area of such mine is closed by an order issued under section 103, section 104, or section 107, 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 they are idled, but for not more than the balance of such shift. If such order is not terminated prior to the next working shift, all miners on that shift who are idled by such order shall be entitled to full compensation by the operator at their regular rates of pay for the period they are idled, but for not more than four hours of such shift. If a coal or other mine or area of such mine is closed by an order issued under section 104 or section 107 of this title for a failure of the operator to comply with any mandatory health or safety standards, all miners who are idled due to such order shall be fully compensated after all interested parties are given an opportunity for a public hearing, which shall be expedited in such cases, and after such order is final, by the operator for lost time at their regular rates of pay for such time as the miners are idled by such closing, or for one week, whichever is the lesser. Whenever an operator violates or fails or refuses to comply with any order issued under section 103, section 104, or section 107 of this Act, 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. The Commission shall have authority to order compensation due under this section upon the filing of a complaint by a miner or his representative and after opportunity for hearing subject to section 554 of title 5, United States Code.

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Page:United States Statutes at Large Volume 91.djvu/1347

 PUBLIC LAW 95-164—NOV. 9, 1977 'ADMINISTRATIVE

91 STAT. 1313

PROVISIONS

" SEC. 112. Except as provided in section 518(a) of title 28, United Litigation. States Code, relating to litigation before the Supreme Court, the Solic- 30 USC 822. itor of Labor may appear for and represent the Secretary in any civil litigation brought under this Act but all such litigation shall be subject to the direction and control of the Attorney General. " THE FEDERAL, M I N E SAFETY AND HEALTH REVIEW COMMISSION

" SEC. 113. (a) The Federal Mine Safety and Health Keview Commission is hereby established. The Commission shall consist of five members, appointed by the President by and with the advice and consent of the Senate, from among persons who by reason of training, education, or experience are qualified to carry out the functions of the Commission under this Act. The President shall designate one of the members of the Commission to serve as Chairman. " (b)(1) The terms of the members of the Commission shall be six years, except that— " (A) members of the Commission first taking office after the date of enactment of the Federal Mine Safety and Health Amendments Act of 1977, shall serve, as designated by the President at the time of appointment, one for a term of two years, two for a term of four years and two for a term of six years; and " (B) a vacancy caused by the death, resignation, or removal of any member prior to the expiration of the term for which he was appointed shall be filled only for the remainder of such unexpired term. Any member of the Commission may be removed by the President for inefficiency, neglect of duty, or malfeasance in office. " (2) The Chairman shall be responsible on behalf of the Commission for the administrative operations of the Commission. The Commission shall appoint such employees as it deems necessary to assist in the performance of the Commission's functions and to fix their compensation in accordance with the provisions of chapter 51 and subchapter III of chapter 53 of title 5, United States Code, relating to classification and general pay rates. Upon the effective date of the Federal Mine Safety and Health Amendments Act of 1977, the administrative law judges assigned to the Arlington, Virginia, facility of the Office of H e a r i n g s and Appeals, United States Department of the Interior, shall be automatically transferred in grade and position to the Federal Mine Safety and Health Review Commission. Notwithstanding the provisions of section 559 of title 5 of the United States Code, the incumbent Chief Administrative Law J u d g e of the Office of Hearings and Appeals of the Department of the Interior assigned to the Arlington, Virginia facility shall have the option, on the effective date of the Federal Mine Safety and Health Amendments Act of 1977, of transferring to the Commission as an administrative law judge, in the same grade and position as the other administrative law judges. The administrative law judges (except those presiding over Indian Probate Matters) assigned to the Western facilities of the Office of H e a r i n g s and Appeals of the Department of the Interior shall remain with that Department at their present grade and position or they shall have the right to transfer on an equivalent basis to that extended in this paragraph to the Arlington, Virginiadministrative law judges in accordance with procedures established by the Civil Service Commission. The Commission shall appoint such additional administrative law judges as it deems necessary to carry out the functions of the Commis-

Establishment.

30 USC 823. Membership.

ehairman. Term.

Vacancies.

Administrative operations.

5 USC 5101, 5331. Administrative law judges, transfers.

Appointments.

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Page:United States Statutes at Large Volume 91.djvu/1348

 91 STAT. 1314 Compensation.

Delegation of powers.

Proceedings, disposition.

Review of decisions, rules of procedure. Discretionary review petition, filing.

PUBLIC LAW 95-164—NOV. 9, 1977 sion. Assignment, removal, and compensation of administrative law judges shall be in accordance with sections 3105,3344,5362 and 7521 of title 5, United States Code. "(c) The Commission is authorized to delegate to any group of three or more members any or all of the powers of the Commission, except that two members shall constitute a quorum of any group designated pursuant to this paragraph. "(d)(1) An administrative law judge appointed by the Commission to hear matters under this Act shall hear, and make a determination upon, any proceeding instituted before the Commission and any motion in connection therewith, assigned to such administrative law judge by the chief administrative law judge of the Commission or by the Commission, and shall make a decision which constitutes his final disposition of the proceedings. The decision of the administrative law judge of the Commission shall become the final decision of the Commission 40 days after its issuance unless within such period the Commission has directed that such decision shall be reviewed by the Commission in accordance with paragraph (2). An administrative law judge shall not be assigned to prepare a recommended decision under this Act. "(2) The Commission shall prescribe rules of procedure for its review of the decisions of administrative law judges in cases under this Act which shall meet the following standards for review: "(A)(i) Any person adversely affected or aggrieved by a decision of an administrative law judge, may file and serve a petition for discretionary review by the Commission of such decision within 30 days after the issuance of such decision. Review by the Commission shall not be a matter of right but of the sound discretion of the Commission. "(ii) Petitions for discretionary review shall be filed only upon one or more of the following grounds: " (I) A finding or conclusion of material fact is not supported by substantial evidence. " ( II) A necessary legal conclusion is erroneous. " ( I l l) The decision is contrary to law or to the duly promulgated rules or decisions of the Commission. "(IV) A substantial question of law, policy or discretion is involved. " (V) A prejudicial error of procedure was committed. "(iii) Each issue shall be separately numbered and plainly and concisely stated, and shall be supported by detailed citations to the record when assignments of error are based on the record, and by statutes, regulations, or principal authorities relied upon. Except for good cause shown, no assignment of error by any party shall rely on any question of fact or law upon which the administrative law judge had not been afforded an opportunity to pass. Review by the Commission shall be granted only by affirmative vote of two of the Commissioners present and voting. If granted, review shall be limited to the questions raised by the petition. "(B) At any time within 30 days after the issuance of a decision of an administrative law judge, the Commission may in its discretion (by affirmative vote of two of the Commissioners present and voting) order the case before it for review but only upon the ground that the decision may be contrary to law or Commission policy, or that a novel question of policy has been presented. The Commission shall state in such order the specific issue of law, Commission policy, or novel question of policy involved. If a party's petition for discretionary review has been granted, the Commission shall not raise or consider additional issues

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Page:United States Statutes at Large Volume 91.djvu/1349

 PUBLIC LAW 95-164—NOV. 9, 1977

91 STAT. 1315

in such review proceedings except in compliance with the requirements of this paragraph. "(C) For the purpose of review by the Commission under para- Record, contents. graph (A) or (B) of this subsection, the record shall include: (i) all matters constituting the record upon which the decision of the administrative law judge was based; (ii) the rulings upon proposed findings and conclusions; (iii) the decision of the administrative law judge; (iv) the petition or petitions for discretionary review, responses thereto, and the Commission's order for review; and (v) briefs filed on review. No other material shall be considered by the Commission upon review. The Commission either may remand the case to the administrative law judge for further proceedings as it may direct or it may affirm, set aside, or modify the decision or order of the administrative law judge in conformity with the record. If the Commission determines that further evidence is necessary on an issue of fact it shall remand the case for further proceedings before the administrative law judge. (The provisions of section 557(b) of title 5, United States Code, with regard to the review authority of the Commission are hereby expressly superseded to the extent that they are inconsistent with the provisions of subparagraphs (A), (B), and (C) of this paragraph.) "(e) In connection with hearings before the Commission or its Witnesses and administrative law judges under this Act, the Commission and its evidence. administrative law judges may compel the attendance and testimony of witnesses and the production of books, papers, or documents, or objects, and order testimony to be taken by deposition at any stage of the proceedings before them. Any person may be compelled to appear and depose and produce similar documentary or physical evidence, in the same manner as witnesses may be compelled to appear and produce evidence before the Commission and its administrative law judges. Witnesses shall be paid the same fees and mileage that are paid wit- Compensation nesses in the courts of the United States and at depositions ordered by such courts. In case of contumacy, failure, or refusal of any person Subpoenas, to obey a subpoena or order of the Commission or an administrative law judge, respectively, to appear, to testify, or to produce documentary or physical evidence, any district court of the United States or the United States courts of any territory or possession, within the jurisdiction of which such person is found, or resides, or transacts business, = shall, upon the application of the Commission, or the administrative law judge, respectively, have jurisdiction to issue to such person an order requiring such person to appear, to testify, or to produce evidence as ordered by the Commission or the administrative law judge, respectively, and any failure to obey such order of the court may be punished by the court as a contempt thereof. ((AUTHORIZATION

OF APPROPRIATIONS

"SEC. 114. There are authorized to be appropriated, out of any 30 USC 824. moneys in the Treasury not otherwise appropriated, such sums as may be necessary to carry out the provisions of this title. MANDATORY H E A L T H AND SAFETY

TRAINING

"SEC. 115. (a) Each operator of a coal or other mine shall have a. health and safety training program which shall be approved by the Secretary. The Secretary shall promulgate regulations with respect to such health and safety training programs not more than 180 days

Program, approval by Secretary. 30 USC 825. Regulations.

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Page:United States Statutes at Large Volume 91.djvu/1350

 91 STAT. 1316

Underground training.

Surface training.

Refresher training.

Training compensation.

Training certificate. Maintenance and inspection, copy.

Falsification, punishment.

PUBLIC LAW 95-164—NOV. 9, 1977

after the effective date of the Federal Mine Safety and Health Amendments Act of 1977. Each training program approved by the Secretary shall provide as a minimum that— "(1) new miners having no underground mining experience shall receive no less than 40 hours of training if they are to work underground. Such training shall include instruction in the statutory rights of miners and their representatives under this Act, use of the self-rescue device and use of respiratory devices, hazard ' recognition, escapeways, walk around training, emergency procedures, basic ventilation, basic roof control, electrical hazards, first aid, and the health and safety aspects of the task to which he will be assigned; "(2) new miners having no surface mining experience shall receive no less than 24 hours of training if they are to work on the surface. Such training shall include instruction in the statutory rights of miners and their representatives under this Act, use of the self-rescue device where appropriate and use of respiratory devices where appropriate, hazard recognition, emergency procedures, electrical hazards, first aid, walk around training and the health and safety aspects of the task to which he will be assigned; "(3) all miners shall receive no less than eight hours of refresher training no less frequently than once each 12 months, except that miners already employed on the effective date of the Federal Mine Safety and Health Amendments Act of 1977 shall receive this refresher training no more than 90 days after the date of approval of the training plan required by this section; " (4) any miner who is reassigned to a new task in which he has had no previous work experience shall receive training in accordance with a training plan approved by the Secretary under this subsection in the safety and health aspects specific to that task prior to performing that task; "(5) any training required by paragraphs (1), (2) or (4) shall include a period of training as closely related as is practicable to the work in which the miner is to be engaged. "(b) Any health and safety training provided under subsection (a) shall be provided during normal working hours. Miners shall be paid at their normal rate of compensation while they take such training, and new miners shall be paid at their starting wage rate when they take the new miner training. If such training shall be given at a location other than the normal place of work, miners shall also be compensated for the additional costs they may incur in attending such training sessions. "(c) Upon completion of each training program, each operator shall certify, on a form approved by the Secretary, that the miner has received the specified training in each subject area of the approved health and safety training plan. A certificate for each miner shall be maintained by the operator, and shall be available for inspection at the mine site, and a copy thereof shall be given to each miner at the completion of such training. When a miner leaves the operator's employ, he shall be entitled to a copy of his health and safety training certificates. False certification by an operator that training was given shall be punishable under section 110(a) and (f); and each health and safety training certificate shall indicate on its face, in bold letters, printed in a conspicuous manner the fact that such false certification is so punishable.

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Page:United States Statutes at Large Volume 91.djvu/1351

 PUBLIC LAW 95-164—NOV. 9, 1977 "(d) The Secretary shall promulgate appropriate standards for safety and health training for coal or other mine construction workers. "(e) Within 180 days after the effective date of the Federal Mine Safety and Health Amendments Act of 1977, the Secretary shall publish proposed regulations which shall provide that mine rescue teams shall be available for rescue and recovery work to each underground coal or other mine in the event of an emergency. The costs of making advance arrangements for such teams shall be borne by the operator of each such mine.".

91 STAT. 1317 Standards. Proposed regulations, publication.

AMENDMENTS W I T H RESPECT TO I N T E R I M MANDATORY H E A L T H STANDARDS

SEC. 202. (a) Section 202(e) of the Federal Coal Mine Health and Dust concentrations. Safety Act of 1969 is amended to read as follows: "(e) References to concentrations of respirable dust in this title 30 USC 842. mean the average concentration of respirable dust measured with a device approved by the Secretary and the Secretary of Health, Education, and Welfare.". (b) Section 318(k) of the Federal Coal Mine Health and Safety Repeal. 30 USC 878. Act of 1969 is repealed. AMENDMENTS W I T H RESPECT TO I N T E R I M MANDATORY SAFETY STANDARDS FOR UNDERGROUND COAL M I N E S

SEC. 203. (a) Title III of the Federal Coal Mine Health and Safety Act of 1969 is amended by inserting "of the Interior in coordination 30 USC 861. with the Secretary" after "Secretary" in section 301(b). (b) Subsections (c) and (d) of section 301 of such Act are repealed. Repeals. TITLE III—MISCELLANEOUS PROVISIONS TRANSFER

MATTERS

SEC. 301. (a) Except with respect to the functions assigned to the 30 USC 961. Secretary of the Interior pursuant to section 501 of the Federal Coal Mine Health and Safety Act of 1969, the functions of the Secretary 30 USC 951. of the Interior under the Federal Coal Mine Health and Safety Act of 1969, as amended, and the Federal Metal and Nonmetallic Mine Safety 30 USC 801 note. Act are transferred to the Secretary of Labor, except those which are 30 USC 721 note. expressly transferred to the Commission by this Act. (b)(1) The mandatory standards relating to mines, issued by the Secretary of the Interior under the Federal Metal and Nonmetallic Mine Safety Act and standards and regulations under the Federal Coal Mine Health and Safety Act of 1969 which are in effect on the date of enactment of this Act shall remain in effect as mandatory health or safety standards applicable to metal and nonmetallic mines and to coal mines respectively under the Federal Mine Safety and Health Act of 1977 until such time as the Secretary of Labor shall issue new or revised mandatory health or safety standards applicable to metal and nonmetallic mines and new or revised mandatory health or safety standards applicable to coal mines. (2) Within 60 days after the date of enactment of this Act, the Advisory Secretary of Labor in consultation with the Secretary of the Interior committees, shall establish an advisory committee under section 102 of the Federal establishment, Mine Safety and Health Act of 1977 which shall, within 180 days consultation. after the date of the establishment of such advisory committee, review Review and recommendathe advisory health and safety standards issued by the Secretary of tions. 30 USC 812.

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Page:United States Statutes at Large Volume 91.djvu/1352

 91 STAT. 1318

PUBLIC LAW 95-164—NOV. 9, 1977

the Interior under the Federal Metal and Nonmetallic Mine Safety Act and recommend to the Secretary of Labor which of those standards (or any modifications of such standards which do not substantially diminish the health and safety of miners) should be Standards, promulgated as mandatory health or safety standards. The Secretary publication in of Labor shall publish, within 60 days after any recommendations of Federal Register, ^j^^ advisory committee under this paragraph, each of the standards so recommended for adoption with or without modifications as a proposed mandatory health or safety standard under this section by publication of such standard in the Federal Kegister, and afford interested persons a period of 25 days after publication to submit written data or comment. Within 30 days after the close of the comment period specified in the preceding sentence, the Secretary of Labor shall promulgate by publication in the Federal Kegister mandatory health or safety standards based upon the advisory committee recommendation with or without modification, and the data and comments received thereon, unless the Secretary of Labor determines that such standards will not promote the health and safety of miners and publishes an explanation of that determination in the Federal Register. Transfer of (c)(1) All unexpended balances of appropriations, personnel, propfunctions. erty, records, obligations, and commitments which are used primarily with respect to any functions transferred under the provisions of subsection (a) to the Secretary of Labor shall be transferred to the Department of Labor or the Commission, as appropriate. The transfer of personnel pursuant to this paragraph shall be without reduction in classification or compensation for one year after such transfer, except that the Secretary of Labor shall have full authority to assign personnel during such one-year period in order to efficiently carry out functions transferred to him under this Act. Savings (2) All orders, decisions, determinations, rules, regulations, perprovisions. mits, contracts, certificates, licenses, and privileges (A) which have been issued, made, granted, or allowed to become effective in the exercise of functions which are transferred under this section by any department or agency, any functions of which are transferred by this section, and (B) which are in effect at the time this section takes effect, shall continue in effect according to their terms until modified, terminated, superseded, set aside, revoked, or repealed by the Secretary of Labor, the Federal Mine Safety and Health Review Commission or other authorized officials, by any court of competent jurisdiction, or by operation of law. (3) The provisions of this section shall not affect any proceedings pending at the time this section takes effect before any department, agency, or component thereof, functions of which are transferred by this section, except that such proceedings, to the extent that they relate to functions so transferred, shall be continued before the Secretary of Labor or the Federal Mine Safety and Health Review Commission. Orders shall be issued in such proceedings, appeals shall be taken therefrom, and payments shall be made pursuant to such orders, as if this section had not been enacted; and orders issued in any such proceedings shall continue in effect until modified, terminated, superseded, revoked, or repealed by the Secretary of Labor, the Federal Mine Safety and Health Review Commission, by a court of competent jurisdiction, or by operation of law. Nothing in this subsection shall be deemed to prohibit the discontinuance or modification of any proceeding under the same terms and conditions and to the same extent

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Page:United States Statutes at Large Volume 91.djvu/1353

 PUBLIC LAW 95-164—NOV. 9, 1977 that such proceeding could have been discontinued if this section had not been enacted. (4) The provisions of this section shall not affect suits commenced prior to the date this section takes effect and in all such suits proceedings shall be had, appeals taken, and judgments rendered, in the same manner and effect as if this section had not been enacted; except that if before the date on which this section takes effect, any department or agency (or officer thereof in his official capacity) is a party to a suit involving functions transferred to the Secretary, then such suit shall be continued by the Secretary of Labor. No cause of action, and no suit, action, or other proceeding, by or against any department or agency (or officer thereof in his official capacity) functions of which are transferred by this section, shall abate by reason of the enactment of this section. Causes of actions, suits, actions, or other proceedings may be asserted by or against the United States or the Secretary as may be appropriate and, in any litigation pending when this section takes effect, the court may at any time, on its own motion or that of any party, enter an order which will give effect to the provisions of this paragraph. (d) For purposes of this section, (1) the term "function" includes power and duty, and (2) the transfer of a function, under any prqvision of law, of an agency or the head of a department shall also be a transfer of all functions under such law which are exercised by any officer or officer of such agency or department. (e) The Director of the Office of ]\Ianagement and Budget in consultation with the Secretary of Labor and the Secretary of the Interior is authorized and directed to make such determinations as may be necessary with regard to the dispositions of personnel, personnel positions, property, records, assets, liabilities, contracts, obligations, commitments, unexpended balances of appropriations, authorizations, allocations, and other funds employed, held, used, arising from, available or to be made available, in connection with the functions transferred by this Act as he may deem necessary to accomplish the purposes of this Act. M I N E SAFETY AND HEALTH

91 STAT. 1319

"Function."

Determinations by OMB Director, consultation.

ADMINISTRATION

SEC. 302. (a) There is established in the Department of Labor a Mine Safety and Health Administration to be headed by an Assistant Secretary of Labor for Mine Safety and Health appointed by the President, by and with the advice and consent of the Senate. The Secretary, acting through the Assistant Secretary for Mine Safety and Health, shall have authority to appoint, subject to the civil service laws, such officers and employees as he may deem necessary for the administration of this Act, and to prescribe powers, duties, and responsibilities of all officers and employees engaged in the administration of this Act. The Secretary is authorized and directed, except as specifically provided otherwise to carry out his functions under the Federal Mine Safety and Health Act of 1977 through the Mine Safety and Health Administration. (b) Section 5316 of title 5; United States Code, is amended by adding at the end thereof the following paragraphs: "(120) Assistant Secretary of Labor for Mine Safety and Health. "(121) Members, Federal Mine Safety and Health Review Commission.".

Establishment. 29 USC 557a. Employees, duties.

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Page:United States Statutes at Large Volume 91.djvu/1354

 91 STAT. 1320

Office locations. 30 USC 823a.

PUBLIC LAW 95-164—NOV. 9, 1977 (c)(1) Section 5314 of title 5, United States Code, is amended by adding at the end thereof the following new paragraph: "(66) Chairman, Federal Mine Safety and Health Keview Commission.". (d) The principal office of the Commission shall be in the District of Columbia. Whenever the Commission deems that convenience of the public or the parties may be promoted, or delay or expense may be minimized, it may hold hearings or conduct other proceedings at any other place. AMENDMENTS W I T H RESPECT TO M I N E SAFETY AND H E A L T H ADMINISTRATION

Studies and research.

30 USC 951.

Duties.

Appropriation authorization.

30 USC 952. Assistance to States.

30 USC 953. Appropriation authorization.

30 USC 954.

'

SEC. 303. (a)(1) Section 501 of the Federal Coal Mine Health and Safety Act of 1969 is amended by inserting "or other" after "coal" wherever it appears therein, and by striking coal-mining" and inserting in lieu thereof "coal or other mining" wherever it appears therein. (2) Section 501(a) of the Federal Coal Mine Health and Safety Act of 1969 is further amended by striking "and" after the semicolon in paragraph (10), by redesignating paragraph (11) as paragraph (12), and by inserting immediately after paragraph "(10)", the following new paragraph: " (11) to determine, upon the written request by any operator or authorized representative of miners, specifying with reasonable particularity the grounds upon which such request is made, whether any substance normally found in a coal or other mine has potentially toxic effects in the concentrations normally found in the coal or other mine or whether any physical agents or equipment found or used in a coal or other mine has potentially hazardous effects, and shall submit such determinations to both the operators and miners as soon as possible; and". (3) Section 501(b) of such Act is amended by adding after "Welfare" the following: "through the National Institute for Occupational Safety and Health established under the Occupational Safety and Health Act of 1970"; and by striking out the period at the end thereof and substituting "of the Interior in coordination with the Secretary". (4) Section 501(c) is amended by inserting "of the Interior" after "the Secretary" each place it occurs; and by inserting "in coordination with the Secretary" after "and Welfare" each place it occurs. (5) Section 501(e) of such Act is amended by inserting after "Secretary" the first time it occurs therein, "of the Interior" and by striking "$30,000,000" and by inserting, in lieu therof "$60,000,000". (6) Section 501(a) of such Act is amended by striking out "The Secretary and" and inserting in lieu thereof "The Secretary of the Interior and". (b) Section 502 of such Act is amended by inserting "or other" immediately after "coal" each time it appears therein. (c)(1) Section 503 of such Act is amended by inserting "or other" immediately after "coal" each time it appears therein, and by striking "Labor" and inserting in lieu thereof, "the Interior". (2)(A) The first sentence of section 503(h) of such Act is amended by deleting "$5,000,000" and by inserting in lieu thereof, "$10,000,000". (B) The second sentence of section 503(h) of such Act is amended by inserting before the period the following: ", except that no less than one-half of such sum shall be allocated to coal-producing States". (d)(1) Section 505 of such Act is amended by striking out "the mining of coal" and inserting in lieu thereof "in mining".

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Page:United States Statutes at Large Volume 91.djvu/1355

 PUBLIC LAW 95-164—NOV. 9, 1977

91 STAT. 1321

(2) Section 505 of such Act is further amended by striking out the period at the end of the second sentence thereof and inserting in lieu thereof ": Provided, however, That, to the maximum extent feasible, in the selection of persons for appointment as mine inspectors, no person shall be so selected unless he has the basic qualification of at least five years practical mining experience and in assigning mine inspectors to the inspection and investigation of individual mines, due consideration shall be given to the extent possible to their previous experience in the particular type of mining operation where such inspections are to be made.". (e) Section 506(b) of such Act is amended by inserting "or other" immediately after "coal" each time it appears therein. (f) Section 511 of such Act is amended by inserting "or other" immediately after "coal". (g) Section 512 of such Act is amended by inserting "or other" after "coal" each time it appears therein. (h) Section 502 of such Act is amended by adding at the end thereof the following new subsection (c): "(c)(1) The National Mine Health and Safety Academy shall be maintained as an agency of the Department of the Interior. The Academy shall be responsible for the training of mine safety and health inspectors under section 505 of this Act, and in training of technical support personnel of the Mine Safety and Health Administration established under section 302 of the Federal Mine Safety and Health Amendments Act of 1977; and for any other training programs for mine inspectors, mining personnel, or other persons as the Secretaries of Labor and the Interior shall designate. In performing this function, the Academy shall have the authority to enter into cooperative educational and training agreements with educational institutions, State governments, labor organizations, and mine operators and related industries. Such training shall be conducted by the Academy in accordance with curriculum needs and assignment of instructional personnel established by the user. "(2) In performing its function pursuant to this section, the National Mine Health and Safety Academy shall use the facilities and personnel of the Department of the Interior, and such other personnel as shall be mutually agreed upon by the Secretaries of Labor and the Interior. The Secretary of the Interior may appoint or assign to the Academy such officers and employees as he deems necessary for the performance of the duties and functions of the Academy. "(3) The Secretary of the Interior shall conduct his safety research responsibilities under section 501 of this Act in coordination with the Secretary of Labor, and the Secretaries of Labor and the Interior are authorized to enter into contractual or other agreements for the performance of such safety related research.".

Mine inspectors, qualifications and selection. Ante, p. 1320.

30 USC 955. 30 USC 958. 30 USC 959. Safety training; and educational programs. National Mine Health and Safety Academy. Ante, p. 1320. Ante, p. 1319. eooperative agreements.

Facilities and personnel.

Ante, p. 1320.

SAVINGS PROVISION

SEC. 304. Nothing contained in this Act or any amendment made by this Act shall be construed to reduce the number of inspectors engaged in enforcement of the Federal Coal Mine Health and Safety Act of 1969 and the Federal Metal and Nonmetallic Mine Safety Act as in effect prior to the effective date of this Act or to reduce the number of inspectors engaged in the enforcement of the Occupational Safety and Health Act of 1970.

30 USC 954 note, 30 USC 801 note, 30 USC 721 note, 29 USC 651 note.

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Page:United States Statutes at Large Volume 91.djvu/1356

 91 STAT. 1322

PUBLIC LAW 95-164—NOV. 9, 1977 BUDGET PROVISION

Appropriation accounts, separation. 31 USC 11 note.

29 USC 651 note.

SEC. 305. In the preparation of the Budget message required under section 201 of the Budget and Accounting Act, 1921 (31 U.S.C. 11), the President shall set forth as separate appropriation accounts amounts required for appropriation for mine health and safety pursuant to the Federal Mine Safety and Health Act of 1977 and for occupational safety and health pursuant to the Occupational Safety and Health Act of 1970. REPEALER

30 USC 721-740. 43 USC 1456a.

SEC. 306. (a) The Federal Metal and Nonmetallic Mine Safety Act is reijealed. (b) Section 405 of the Act of November 16, 1973, Public Law 93-153 is repealed. EFFECTIVE DATE

30 USC 801 note. Rules and regulations.

Ante, p. 1317.

SEC. 307. Except as otherwise provided, this Act and the amendments made by this Act shall take effect 120 days after the date of enactment of this Act. The Secretary of Labor and the Secretary of the Interior are authorized to establish such rules and regulations as may be necessary for the efficient transfer of functions provided under this Act. The amendment to the Federal Coal Mine Health and Safety Act of 1969 made by section 202 of this Act shall be effective on the date of enactment. Approved November 9, 1977.

LEGISLATIVE HISTORY: HOUSE REPORTS: No. 95-312 accompanying H.R. 4287 (Comm. on Education and Labor) and No. 95-655 (Comm. of eonference). SENATE REPORTS: No. 95-181 (Comm. on Human Resources) and No. 95-461 (Comm. of eonference). CONGRESSIONAL RECORD, Vol. 123 (1977): June 20, 2 1, considered and passed Senate. July 14, 15, considered and passed House, amended, in lieu of H.R. 4287. Oct. 6, Senate agreed to conference report. Oct. 27, House agreed to conference report. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 13, No. 46: Nov. 9, Presidential statement.

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Page:United States Statutes at Large Volume 91.djvu/1357

 PUBLIC LAW 95-165—NOV. 9, 1977

91 STAT. 1323

Public Law 95-165 95th Congress Joint Resolution Making further continuiHg appropriations for the fiscal year 1978, and for other purposes.

JNov. 9, 1971 [H.J. Res. 64^J]

Resolved by the Senate and H(mse of Representatives of the United States of America in Congress assembled, That the following sums Continuing are appropriated out of any money in the Treasury not otherwise appropriations, appropriated, and out of applicable corporate or other revenues, ^^'^* receipts, and funds, for the several departments, agencies, corporations, and other organizational units of the Government for the fiscal year 1978, namely: SEC. 101. Such amounts as may be necessary for continuing projects or activities which were conducted in the fiscal year 1977, and for which appropriations, funds, or other authority would be available in the District of Columbia Appropriations Act, 1978 (H.R. 9005) as passed the House of Representatives or the Senate, but at a rate of operations not in excess of the current rate: Provided, That the Advisory Neighborhood Commissions shall be contained at an annual rate of not to exceed $500,000: Provided further, That the rate of operations for the Disaster Loan Fund of the Small Business Administration contained in said Act shall be the rate as passed the Senate. Such amounts as may be necessary for projects or activities provided for in the Departments of Labor, and Health, Education, and Welfare, and Related Agencies Appropriation Act, 1978 (H.R. 7555), at a rate of operations, and to the extent and in the manner, provided for in such Act as modified by the House of Representatives on August 2, 1977, notwithstanding the provisions of section 106 of this joint resolution. SEC. 102. Appropriations and funds made available and authority granted pursuant to this joint resolution shall be available from November 1, 1977, and shall remain available until (a) enactment into law of an appropriation for any project or activity provided for in this joint resolution, or (b) November 30, 1977, whichever first occurs. SEC. 103. Appropriations and funds made available or authority granted pursuant to this joint resolution may be used without regard to the time limitations for submission and approval of apportionments set forth in 31 U.S.C. 665 (d)(2), but nothing herein shall be construed to waive any other provision of law governing the apportionment of funds. SEC. 104. Appropriations made and authority granted pursuant to this joint resolution shall cover all obligations or expenditures incurred for any project or activity during the period for which funds or authority for such project or activity are available under this joint resolution. SEC. 105. Expenditures made pursuant to this joint resolution shall be charged to the applicable appropriation, fund, or authorization whenever a bill in which such applicable appropriation, fund, or authorization is contained is enacted into law.

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Page:United States Statutes at Large Volume 91.djvu/1358

 91 STAT. 1324

r

' ^

PUBLIC LAW 95-165—NOV. 9, 1977 SEC. 106. No appropriation or fund made available or authority granted pursuant to this joint resolution shall be used to initiate or resume any project or activity for which appropriations, funds, or other authority were not available during the fiscal year 1977. SEC. 107. All obligations incurred in anticipation of the appropriations and authority provided in this joint resolution are hereby ratified and confirmed if otherwise in accordance with the provisions of this joint resolution. Approved November 9, 1977.

LEGISLATIVE HISTORY: HOUSE REPORT No. 95-792 CONGRESSIONAL RECORD, Nov. 3, considered and Nov. 4, considered and

(Comm. on Appropriations). Vol. 123 (1977): passed House. passed Senate.

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Page:United States Statutes at Large Volume 91.djvu/1359

 PUBLIC LAW 95-166—NOV. 10, 1977

91 STAT. 1325

Public Law 95-166 95th Congress An Act To amend the National School Lunch Act and the Child Nutrition Act of 1966 in order to revise and extend the summer food program, to revise the special milk program, to revise the school breakfast program, to authorize the Secretary of Agriculture to carry out a program of nutrition information and education as part of food service programs for children conducted under such Acts, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of A7ne?ica in Congress assembled, That this Act may be cited as the "National School Lunch Act and Child Nutrition Amendments of 1977". SUMMEr: FOOD SERVICE PROGRAM FOR CHILDREN

SEC. 2. Section 13 of the National School Lunch Act is amended to read as f ollow s:

Nov. 10, 1977 [H.R. 1139]

National School Lunch Act and Child Nutrition Amendments of 1977. 42 USC 1751 note. 42 USC 1761.

"SUMMER FOOD SERVICE PROGRAM FOR CHILDREN

"SEC. 13. (a)(1) The Secretary is authorized to carry out a program Assistance to to assist States, through grants-in-aid and other means, to initiate, States. maintain, and expand nonprofit food service programs for children in Definitions. service institutions. For purposes of this section, (A) 'program' means the summer food service program for children authorized by this section; (B) 'service institutions' means nonresidential public or private nonprofit institutions, and residential public or private nonprofit summer camps, that develop special summer or school vacation programs providing food service similar to that made available to children during the school year under the school lunch program under this Act or the school breakfast program under the Child Nutrition Act of 1966; (C) 'areas in which poor economic conditions exist' means areas 42 USC 1771 in which at least 331/3 percent of the children are eligible for free or note. reduced price school meals under this Act and the Child Nutrition Act of 1966, as determined by information provided from departments of welfare, zoning commissions, census tracts, by the number of free and reduced price lunches or breakfasts served to children attending public and nonprofit private schools located in the area of program food service sites, or from other appropriate sources, including statements of eligibility based upon income for children enrolled in the program; (D) 'children' means individuals who are eighteen years of age and under, and individuals who are older than eighteen who are (i) determined by a State educational agency or a local public educational agency of a State, in accordance with regulations prescribed by the Secretary, to be mentally or physically handicapped, and (ii) participating in a public school program established for the mentally or physically handicapped; and (E) 'State' means any of the fifty States, the District of ("olumbia, the Commonwealth of Puerto Rico, the Virgin Islands of the United States, Guam, American Samoa, the Trust Territory of the Pacific Islands, and the Northern Mariana Islands. "(2) To the maximum extent feasible, consistent with the purposes of this section, any food service under the program shall use meals prepared at the facilities of the service institution or at the food service

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Page:United States Statutes at Large Volume 91.djvu/1360

 91 STAT. 1326

Service institutions, eligibility.

Participation, priorities.

Reimbursement, limitations.

42 USC 1771 note. Payments to institutions.

Adjustments.

Meals per day, limitation.

PUBLIC LAW 95-166—NOV. 10, 1977

facilities of public and nonprofit private schools. The Secretary shall assist States in the development of information and technical assistance to encourage increased service of meals prepared at the facilities of service institutions and at public and nonprofit private schools. "(3) Eligible service institutions entitled to participate in the program shall be limited to those that— "(A) demonstrate adequate administrative and financial responsibility to manage an effective food service; "(B) have not been seriously deficient in operating under the program; "(C) either conduct a regularly scheduled food service for children from areas in which poor economic conditions exist or qualify as camps; and "(D) provide an ongoing year-round service to the community to be served under the program (except that an otherwise eligible service institution shall not be disqualified for failure to meet this requirement for ongoing year-round service if the State determines that its disqualification would result in an area in which poor economic conditions exist not being served or in a significant number of needy children not having reasonable access to a summer food service program). "(4) The following order of priority shall be used by the State in determining participation where more than one eligible service institution proposes to serve the same area: "(A) local schools or service institutions that have demonstrated successful program performance in a prior year; "(B) service institutions that prepare meals at their own facilities or operate only one site; "(C) service institutions that use local school food facilities for the preparation of meals; "(D) other service institutions that have demonstrated ability for successful program operation; and " (E) service institutions that plan to integrate the program with Federal, State, or local employment programs. The Secretary and the States, in carrying out their respective functions under this section, shall actively seek eligible service institutions located in rural areas, for the purpose of assisting such service institutions in applying to participate in the program. "(5) Camps that satisfy all other eligibility requirements of this section shall receive reimbursement only for meals served to children who meet the eligibility requirements for free or reduced price meals, as determined under this Act and the Child Nutrition Act of 1966. "(b)(1) Payments to service institutions shall equal the full cost of food service operations (which cost shall include the cost of obtaining, preparing, and serving food, but shall not include administrative costs), except tl at such payments to any institution shall not exceed (1) 85.75 cents for each lunch and supper served; (2) 47.75 cents for each breakfast served; or (3) 22.50 cents for each meal supplement served: Provided, That such amounts shall be adjusted each January 1 to the nearest one-fourth cent in accordance with the changes for the twelve-month period ending the preceding November 30 in the series for food away from home of the Consumer Price Index published by the Bureau of Labor Statistics of the Department of Labor: Provided further, That the Secretary may make such adjustments in the maximum reimbursement levels as the Secretary determines appropriate after making the study prescribed in paragraph (4) of this subsection. "(2) Any service institution shall be pennitted to serve up to three

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Page:United States Statutes at Large Volume 91.djvu/1361

 PUBLIC LAW 95-166—NOV. 10, 1977 meals per day of operation if at least one of the three meals is a meal supplement, and any service institution that is a camp shall be permitted to serve up to four meals per day of operation, if the service institution has the administrative capability, and the food preparation and food holding capabilities (where applicable), to manage more than one meal service per day, and if the service period of different meals does not coincide or overlap. Such meals may include a breakfast, a lunch, a supper, and meal supplements. "(3) Every service institution, when applying for participation in the program, shall submit a complete budget for administrative costs related to the program, which shall be subject to approval by the State. Payment to service institutions for administrative costs shall equal the full amount of State approved administrative costs incurred, except that such payment to service institutions may not exceed the maximum allowable levels determined by the Secretary pursuant to the study prescribed in paragraph (4) of this subsection. "(4)(A) The Secretary shall conduct a study of the food service operations carried out under the program. Such study shall include, but shall not be limited to— "(i) an evaluation of meal quality as related to costs; and "(ii) a determination whether adjustments in the maximum reimbursement levels for food service operation costs prescribed in paragraph (1) of this subsection should be made, including whether different reimbursement levels should be established for self-prepared meals and vendored meals and which siterelated costs, if any, should be considered as part of administrative costs. "(B) The Secretary shall also study the administrative costs of service institutions participating in the program and shall thereafter prescribe maximum allowable levels for administrative payments that reflect the costs of such service institutions, taking into account the number of sites and children served, and such other factors as the Secretary determines appropriate to further the goals of efficient and effective administration of the program. "(C) The Secretary shall report the results of such studies to Congress not later than December 1, 1977. "(c) Payments shall be made to service institutions only for meals served during the months of May through September, except in the case of service institutions that operate food service programs for children on school vacation at any time under a continuous school calendar. "(d) Not later than April 15, May 15, and July 1, of each year, the Secretary shall forward to each State a letter of credit (advance program payment) that shall be available to each State for the payment of meals to be served in the month for which the letter of credit is issued. The amount of the advance program payment shall be an amount which the State demonstrates, to the satisfaction of the Secretary, to be necessary for advance program payments to service institutions in accordance with subsection (e) of this section. The Secretary shall also forward such advance program payments, by the first day of the month prior to the month in which the program will be conducted, to States that operate the program in months other than May through September. The Secretary shall forward any remaining payments due pursuant to subsection (b) of this section not later than sixty days following receipt of valid claims therefor. "(e)(1) Not later than June 1, July 15, and August 15 of each year, or, in the case of service institutions that operate under a

91 STAT. 1327

Budget, submittal. State approval.

Operations, study.

Administrative costs, study.

Results, report to Congress.

Advance program payments to States. Letter of credit, forwarding to States.

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Page:United States Statutes at Large Volume 91.djvu/1362

 91 STAT. 1328

Certification.

Payments, computation.

Limitation.

Valid claims, receipt. Withholding.

Meals, contents.

PUBLIC LAW 95-166—NOV. 10, 1977 continuous school calendar, the first day of each month of operation, the State shall forward advance program payments to each service institution: Provided, That (A) the State shall not release the second month's advance program payment to any service institution that has not certified that it has held t r a i n i n g sessions for its own personnel and the site personnel with regard to program duties and responsibilities, and (B) no advance program payment may be made for any month in which the service institution will operate under the program for less than ten days. " (2) The amount of the advance program payment for any month in the case of any service institution shall be an amount equal to (A) the total program payment for meals served by such service institution in the same calendar month of the preceding calendar year, (B) 50 percent of the amount established by the State to be needed by such service institution for meals if such service institution contracts with a food service management company, or (C) 65 percent of the amount established by the State to be needed by such service institution for meals if such service institution prepares its own meals, whichever amount is greatest: Provided, That the advance program payment may not exceed the total amount estimated by the State to be needed by such service institution for meals to be served in the month for which such advance program payment is made or $40,000, whichever is less, except that a State may make a larger advance program payment to such service institution where the State determines that such larger payment is necessary for the operation of the program by such service institution and sufficient administrative and management capability to justify a larger payment is demonstrated. The State shall forward any remaining payment due a service institution not later than seventyfive days following receipt of valid claims. If the State has reason to believe that a service institution will not be able to submit a valid claim for reimbursement covering the period for which an advance program payment has been made, the subsequent month's advance program payment shall be withheld until such time as the State has received a valid claim. Program payments advanced to service institutions that are not subsequently deducted from a valid claim for reimbursement shall be repaid upon demand by the State. Any prior payment that is under dispute may be subtracted from an advance program payment.

" (f) Service institutions receiving funds under this section shall serve meals consisting of a combination of foods and meeting minimum nutritional standards prescribed by the Secretary on the basis ffii,mG'.l f,-!--^ of tested nutritional research. Such meals shall be served without cost to children attending service institutions approved for operation under this section, except that, in the case of camps, charges may be made for meals served to children other than those who meet the eligibility requirements for free or reduced price meals in accordance with subsection (a)(5) of this section. To assure meal quality. States Quality assurance, shall, with the assistance of the Secretary, prescribed model meal specispecifications and fications and model food quality standards, and ensure that all service standards. institutions contracting for the preparation of meals with food service Meal preparation management companies include in their contracts menu cycles, local contracts, food safety standards, and food quality standards approved by the requirements. State. Such contracts shall require (A) periodic inspections, by an Inspection and independent agency or the local health department for the locality in testing. which the meals are served, of meals prepared in accordance with the contract in order to determine bacteria levels present in such meals, and (B) that bacteria levels conform to the standards which are

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Page:United States Statutes at Large Volume 91.djvu/1363

 PUBLIC LAW 95-166—NOV. 10, 1977 applied by the local health authority for that locality with respect to the levels of bacteria that may be present in meals served by other establishments in that locality. Such inspections and any testing resulting therefrom shall be in accordance with the practices employed by such local health authority. "(^<r) The Secretary shall publish proposed regulations relating to the implementation of the program by November 1 of each fiscal year, final regulations by January 1 of each fiscal year, and guidelines, applications, and handbooks by February 1 of each fiscal year: Provided, That for fiscal year 1978, those portions of the regulations relating to payment rates for both food service operations and administrative costs need not be published until December 1 and February 1, respectively. I n order to improve program planning, the Secretary may provide that service institutions be paid as startup costs not to exceed 20 percent of the administrative funds provided for in the administrative budget approved by the State under subsection (b)(3) of this section. Any payments made for startup costs shall be subtracted from amounts otherwise payable for administrative costs subsequently made to service institutions under subsection (b)(3) of this section. " (h) Each service institution shall, insofar as practicable, use in its food service under the program foods designated from time to time by the Secretary as being in abundance. The Secretary is authorized to donate to States, for distribution to service institutions, food available under section 416 of the Agricultural Act of 1949 (7 U.S.C. 1431), or purchased under section 32 of the Act of August 24, 1935 (7 U.S.C. 612c) or section 709 of the Food and Agriculture Act of 1965 (7 U.S.C. 1446a-l). Donated foods may be distributed only to service institutions that can use commodities efficiently and effectively, as determined by the Secretary. " (i) If any State (1) is unable for any reason to disburse the funds otherwise payable to it under this section, or (2) does not operate the program in accordance with the requirements of this section, the Secretary shall assume authority for administration of the program in such State, and shall disburse the funds directly to service institutions in the State for the same purposes and subject to the same conditions as are required of a State disbursing funds made available under this section. I n cases described in clause (1) of the preceding sentence, the State shall notify the Secretary, not later than January 1 of each fiscal year in which the program is operated, of its intention not to administer the program. " (j) Expenditures of funds from State and local sources for the maintenance of food programs for children shall not be diminished as a result of funds received under this section. " (k)(1) The Secretary shall pay to each State for its administrative costs incurred under this section in any fiscal year an amount equal to (A) 20 percent of the first $50,000 in funds distributed to that State for the program in the preceding fiscal year; (B) 10 percent of the next $50,000 in funds distributed to that State for the program in the preceding fiscal year; (C) 5 percent of the next $100,000 in funds distributed to that State for the program in the preceding fiscal year; and (D) 2 percent of any remaining funds distributed to that State for the program in the preceding fiscal year: Provided, That such amounts may be adjusted by the Secretary to reflect changes in the size of that State's program since the preceding fiscal year. " (2) The Secretary shall establish standards and effective dates for the proper, efficient, and effective administration of the program

91 STAT. 1329

Regulations, guidelines, and applications, publication.

Startup costs.

Donated foods.

Administration, inability by State.

Notification.

Administrative costs, payment.

Adjustment.

Standards and effective dates, establishment,

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Page:United States Statutes at Large Volume 91.djvu/1364

 91 STAT. 1330 Funds, withholding.

Inspection funds.

Food service management companies, subcontracts.

Additional conditions. Bids. Review.

Registration.

Record, availability to States.

Small and minority-owned businesses.

Contract, standard form. Bid and contract procedures, requirements.

PUBLIC LAW 95-166—NOV. 10, 1977 by the State. If the Secretary finds that the State has failed without good cause to meet any of the Secretary's standards or has failed without good cause to carry out the approved State management and administration plan under subsection (n) of this section, the Secretary may withhold from the State such funds authorized under this subsection as the Secretary determines to be appropriate. "(3) To provide for adequate nutritional and food quality monitoring, and to further the implementation of the program, an additional amount, not to exceed the lesser of actual costs or 1 percent of program funds, shall be made available by the Secretary to States to pay for State or local health department inspections, and to reinspect facilities and deliveries to test meal quality. " (1)(1) Service institutions may contract on a competitive basis only with food service management companies registered with the State in which they operate for the furnishing of meals or management of the entire food service under the program, except that a food service management company entering into a contract with a service institution under this section may not subcontract with a single company for the total meal, with or without milk, or for the assembly of the meal. The Secretary shall prescribe additional conditions and limitations governing assignment of all or any part of a contract entered into by a food service management company under this section. Any food service management company shall, in its bid, provide the service institution information as to its meal capacity. The State shall, upon award of any bid, review the company's registration to calculate how many remaining meals the food service management company is equipped to prepare. (2) Each State shall provide for the registration of food service management companies. For the purposes of this section, registration shall include, at a minimum— "(A) certification that the company meets applicable State and local health, safety, and sanitation standards; "(B) disclosure of past and present company owners, officers, and directors, and their relationship, if any, to any service institution or food service management company that received program funds in any prior fiscal year; ".(C) records of contract terminations or disallowances, and health, safety, and sanitary code violations, in regard to program operations in prior fiscal years; and "(D) the addresses of the company's food preparation and distribution sites, No food service management company may be registered if the State determines that such company (i) lacks the administrative and financial capability to perform under the program, or (ii) has been seriously deficient in its participation in the program in prior fiscal years. " (3) In order to ensure that only qualified food service management companies contract for services in all States, the Secretary shall maintain a record of all registered food service management companies and their program record for the purpose of making such information available to the States. "(4) In accordance with regulations issued by the Secretary, positive efforts shall be made by service institutions to use small businesses and minority-owned businesses as sources of supplies and services. Such efforts shall afford those sources the maximum feasible opportunity to compete for contracts using program funds. "(5) Each State, with the assistance of the Secretary, shall establish a standard form of contract for use by service institutions and food service management companies. The Secretary shall prescribe require-

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Page:United States Statutes at Large Volume 91.djvu/1365

 PUBLIC LAW 95-166—NOV. 10, 1977 merits governing bid and contract procedures for acquisition of the services of food service management companies, including, but not limited to, bonding requirements (which may provide exemptions applicable to contracts of $100,000 or less), procedures for review of contracts by States, and safeguards to prevent collusive bidding activities between service institutions and food service management companies. "(m) States and service institutions participating in programs under this section shall keep such accounts and records as may be necessary to enable the Secretary to determine whether there has been compliance with this section and the regulations issued hereunder. Such accounts and records shall at all times be available for inspection and audit by representatives of the Secretary and shall be preserved for such period of time, not in excess of five years, as the Secretary determines necessary. "(n) Each State desiring to participate in the program shall notify the Secretary by January 1 of each year of its intent to administer the program and shall submit for approval by February 15 a management and administration plan for the program for the fiscal year, which shall include, but not be limited to, (1) the State's administrative budget for the fiscal year, and the State's plans to comply with any standards prescribed by the Secretary under subsection (k) of this section; (2) the State's plans for use of program funds and funds from within the State to the maximum extent practicable to reach needy children, including the State's methods for assessing need, and its plans and schedule for informing service institutions of the availability of the program; (3) the State's best estimate of the number and character of service institutions and sites to be approved, and of meals to be served and children to participate for the fiscal year, and a description of the estimating methods used; (4) the State's plans and schedule for providing technical assistance and training eligible service institutions; (5) the State's schedule for application by service institutions; (6) the actions to be taken to maximize the use of meals prepared by service institutions and the use of school food service facilities; (7) the State's plans for monitoring and inspecting service institutions, feeding sites, and food service management companies and for ensuring that such companies do not enter into contracts for more meals than they can provide effectively and efficiently; (8) the State's plan and schedule for registering food service management companies; (9) the State's plan for timely and effective action against program violators; (10) the State's plan for determining the amounts of program payments to service institutions and for disbursing such payments; (11) the State's plan for ensuring fiscal integrity by auditing service institutions not subject to auditing requirements prescribed by the Secretary; and (12) the State's procedure for granting a hearing and prompt determination to any service institution wishing to appeal a State ruling denying the service institution's application for program participation or for program reimbursement. " (o)(l) Whoever, in connection with any application, procurement, recordkeeping entry, claim for reimbursement, or other document or statement made in connection with the program, knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, "fictitious, or fraudulent statement or entry, or whoever, in connection with the program, knowingly makes an opportunity for any person to defraud the United States, or does or omits to do any act with intent to enable any person

91 STAT. 1331

Accounts and records, retention. Inspection and audit, availability. Management and administration plan, notification and submittal to Secretary.

Penalties.

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