30 U.S.C. § 815 — Procedure for enforcement

Page 140 TITLE 30—MINERAL LANDS AND MINING § 815 Pub. L. 91–173, see section 509 of Pub. L. 91–173, set out as a note under section 801 of this title. § 815. Procedure for enforcement (a) Notification of civil penalty; contest If, after an inspection or investigation, the Secretary issues a citation or order under sec- tion 814 of this title, he shall, within a reason- able time after the termination of such inspec- tion or investigation, notify the operator by cer- tified mail of the civil penalty proposed to be as- sessed under section 820(a) of this title for the violation cited and that the operator has 30 days within which to notify the Secretary that he wishes to contest the citation or proposed as- sessment of penalty. A copy of such notification shall be sent by mail to the representative of miners in such mine. If, within 30 days from the receipt of the notification issued by the Sec- retary, the operator fails to notify the Secretary that he intends to contest the citation or the proposed assessment of penalty, and no notice is filed by any miner or representative of miners under subsection (d) of this section within such time, the citation and the proposed assessment of penalty shall be deemed a final order of the Commission and not subject to review by any court or agency. Refusal by the operator or his agent to accept certified mail containing a cita- tion and proposed assessment of penalty under this subsection shall constitute receipt thereof within the meaning of this subsection. (b) Failure of operator to correct violation; noti- fication; contest; temporary relief (1)(A) If the Secretary has reason to believe that an operator has failed to correct a violation for which a citation has been issued within the period permitted for its correction, the Sec- retary shall notify the operator by certified mail of such failure and of the penalty proposed to be assessed under section 820(b) of this title by reason of such failure and that the operator has 30 days within which to notify the Secretary that he wishes to contest the Secretary’s notifi- cation of the proposed assessment of penalty. A copy of such notification of the proposed assess- ment of penalty shall at the same time be sent by mail to the representative of the mine em- ployees. If, within 30 days from the receipt of notification of proposed assessment of penalty issued by the Secretary, the operator fails to no- tify the Secretary that he intends to contest the notification of proposed assessment of penalty, such notification shall be deemed a final order of the Commission and not subject to review by any court or agency. Refusal by the operator or his agent to accept certified mail containing a notification of proposed assessment of penalty issued under this subsection shall constitute re- ceipt thereof within the meaning of this sub- section. (B) In determining whether to propose a pen- alty to be assessed under section 820(b) of this title, the Secretary shall consider the operator’s history of previous violations, the appropriate- ness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator’s abil- ity to continue in business, the gravity of the violation, and the demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of a viola- tion. (2) An applicant may file with the Commission a written request that the Commission grant temporary relief from any modification or ter- mination of any order or from any order issued under section 814 of this title together with a de- tailed statement giving the reasons for granting such relief. The Commission may grant such re- lief under such conditions as it may prescribe, if— (A) a hearing has been held in which all par- ties were given an opportunity to be heard; (B) the applicant shows that there is sub- stantial likelihood that the findings of the Commission will be favorable to the applicant; and (C) such relief will not adversely affect the health and safety of miners. No temporary relief shall be granted in the case of a citation issued under subsection (a) or (f) of section 814 of this title. The Commission shall provide a procedure for expedited consideration of applications for temporary relief under this paragraph. (c) Discrimination or interference prohibited; complaint; investigation; determination; hearing (1) No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal or other mine subject to this chapter because such miner, representative of miners or applicant for employment has filed or made a complaint under or related to this chapter, including a complaint notifying the operator or the opera- tor’s agent, or the representative of the miners at the coal or other mine of an alleged danger or safety or health violation in a coal or other mine, or because such miner, representative of miners or applicant for employment is the sub- ject of medical evaluations and potential trans- fer under a standard published pursuant to sec- tion 811 of this title or because such miner, rep- resentative of miners or applicant for employ- ment has instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any statutory right afforded by this chapter. (2) Any miner or applicant for employment or representative of miners who believes that he has been discharged, interfered with, or other- wise discriminated against by any person in vio- lation of this subsection may, within 60 days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall forward a copy of the complaint to the re- spondent and shall cause such investigation to be made as he deems appropriate. Such inves- tigation shall commence within 15 days of the Secretary’s receipt of the complaint, and if the Secretary finds that such complaint was not Page 141 TITLE 30—MINERAL LANDS AND MINING § 815 1 So in original. Probably should be ‘‘this’’. frivolously brought, the Commission, on an ex- pedited basis upon application of the Secretary, shall order the immediate reinstatement of the miner pending final order on the complaint. If upon such investigation, the Secretary deter- mines that the provisions of this subsection have been violated, he shall immediately file a complaint with the Commission, with service upon the alleged violator and the miner, appli- cant for employment, or representative of min- ers alleging such discrimination or interference and propose an order granting appropriate relief. The Commission shall afford an opportunity for a hearing (in accordance with section 554 of title 5 but without regard to subsection (a)(3) of such section) and thereafter shall issue an order, based upon findings of fact, affirming, modi- fying, 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 commit- ting 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 addi- tional evidence on his own behalf during any hearing held pursuant to his 1 paragraph. (3) Within 90 days of the receipt of a complaint filed under paragraph (2), the Secretary shall no- tify, in writing, the miner, applicant for employ- ment, or representative of miners of his deter- mination 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 be- half before the Commission, charging discrimi- nation or interference in violation of paragraph (1). The Commission shall afford an opportunity for a hearing (in accordance with section 554 of title 5 but without regard to subsection (a)(3) of such section), and thereafter shall issue an order, based upon findings of fact, dismissing or sustaining the complainant’s charges and, if the charges are sustained, granting such relief as it deems appropriate, including, but not limited to, an order requiring the rehiring or reinstate- ment 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 charges under this subsection, a sum equal to the aggre- gate amount of all costs and expenses (including attorney’s fees) as determined by the Commis- sion to have been reasonably incurred by the miner, applicant for employment or representa- tive of miners for, or in connection with, the in- stitution 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 Commis- sion under this paragraph shall be subject to ju- dicial review in accordance with section 816 of this title. Violations by any person of paragraph (1) shall be subject to the provisions of sections 818 and 820(a) of this title. (d) Contest proceedings; hearing; findings of fact; affirmance, modification, or vacatur of citation, order, or proposed penalty; proce- dure before Commission If, within 30 days of receipt thereof, an oper- ator of a coal or other mine notifies the Sec- retary that he intends to contest the issuance or modification of an order issued under section 814 of this title, or citation or a notification of pro- posed assessment of a penalty issued under sub- section (a) or (b) of this section, or the reason- ableness of the length of abatement time fixed in a citation or modification thereof issued under section 814 of this title, or any miner or representative of miners notifies the Secretary of an intention to contest the issuance, modi- fication, or termination of any order issued under section 814 of this title, or the reasonable- ness of the length of time set for abatement by a citation or modification thereof issued under section 814 of this title, the Secretary shall im- mediately advise the Commission of such notifi- cation, and the Commission shall afford an op- portunity for a hearing (in accordance with sec- tion 554 of title 5, but without regard to sub- section (a)(3) of such section), and thereafter shall issue an order, based on findings of fact, af- firming, modifying, or vacating the Secretary’s citation, order, or proposed penalty, or directing other appropriate relief. Such order shall be- come final 30 days after its issuance. The rules of procedure prescribed by the Commission shall provide affected miners or representatives of af- fected miners an opportunity to participate as parties to hearings under this section. The Com- mission shall take whatever action is necessary to expedite proceedings for hearing appeals of orders issued under section 814 of this title. (Pub. L. 91–173, title I, § 105, Dec. 30, 1969, 83 Stat. 753; Pub. L. 95–164, title II, § 201, Nov. 9, 1977, 91 Stat. 1303.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (c)(1), was in the original ‘‘this Act’’, meaning Pub. L. 91–173, Dec. 30, 1969, 83 Stat. 742, known as the Federal Mine Safety and Health Act of 1977, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 801 of this title and Tables. AMENDMENTS 1977—Subsec. (a). Pub. L. 95–164 substituted provi- sions under which the Secretary must notify the oper- ator of the civil penalty he proposes to assess following the issuance of a citation or order and the operator must give notice that he will contest the citation or proposed assessment for provisions under which an op- erator was required to apply for review of an order issued under section 814 of this title and under which an investigation was made, hearings held, and informa- tion presented. Subsec. (b). Pub. L. 95–164 substituted provisions re- lating to the steps to be taken following the failure of the operator to correct violations, including provisions relating to temporary relief formerly contained in sub- Page 142 TITLE 30—MINERAL LANDS AND MINING § 816 sec. (d), for provisions requiring the Secretary to make findings of fact and to issue a written decision upon re- ceiving the report of an investigation. Subsec. (c). Pub. L. 95–164 added subsec. (c). Former subsec. (c), directing the Secretary to take action under this section as promptly as possible, was incor- porated into a part of par. (3). Subsec. (d). Pub. L. 95–164 added subsec. (d). Former subsec. (d) redesignated (b)(2). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1977 AMENDMENT Amendment by Pub. L. 95–164 effective 120 days after Nov. 9, 1977, except as otherwise provided, see section 307 of Pub. L. 95–164, set out as a note under section 801 of this title. EFFECTIVE DATE Section operative 90 days after Dec. 30, 1969, except to the extent an earlier date is specifically provided for in Pub. L. 91–173, see section 509 of Pub. L. 91–173, set out as a note under section 801 of this title. § 816. Judicial review of Commission orders (a) Petition by person adversely affected or ag- grieved; temporary relief (1) Any person adversely affected or aggrieved by an order of the Commission issued under this chapter may obtain a review of such order in any United States court of appeals for the cir- cuit in which the violation is alleged to have oc- curred 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 pe- tition 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 pro- ceeding as provided in section 2112 of title 28. Upon such filing, the court shall have exclusive jurisdiction of the proceeding and of the ques- tions 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 Com- mission and enforcing the same to the extent that such order is affirmed or modified. No ob- jection that has not been urged before the Com- mission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary cir- cumstances. 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 mate- rial and that there were reasonable grounds for the failure to adduce such evidence in the hear- ing 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 ad- ditional evidence so taken and filed, and it shall file such modified or new findings, which find- ings with respect to questions of fact, if sup- ported 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. (2) In the case of a proceeding to review any order or decision issued by the Commission under this chapter, except an order or decision pertaining to an order issued under section 817(a) of this title or an order or decision per- taining to a citation issued under section 814(a) or (f) of this title, the court may, under such conditions as it may prescribe, grant such tem- porary 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 deter- mination 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 chapter, the court may, under such conditions as it may prescribe, grant such temporary relief as it deems appropriate pending final determina- tion 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 deter- mination of the proceeding. (b) Petition by Secretary for review or enforce- ment of final Commission orders The Secretary may also obtain review or en- forcement 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 connec- tion 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 notifi- cation by the Secretary which has become a final order of the Commission under subsection (a) or (b) of section 815 of this title, 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