30 U.S.C. § 823 — Federal Mine Safety and Health Review

Page 148 TITLE 30—MINERAL LANDS AND MINING § 821 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. REGULATIONS Pub. L. 109–236, § 8(b), June 15, 2006, 120 Stat. 501, pro- vided that: ‘‘Not later than December 30, 2006, the Sec- retary of Labor shall promulgate final regulations with respect to penalties.’’ § 821. Entitlement of miners to full compensation If a coal or other mine or area of such mine is closed by an order issued under section 813 of this title, section 814 of this title, or section 817 of this title, all miners working during the shift when such order was issued who are idled by such order shall be entitled, regardless of the re- sult of any review of such order, to full com- pensation 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 work- ing shift, all miners on that shift who are idled by such order shall be entitled to full compensa- tion 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 814 of this title or section 817 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 inter- ested parties are given an opportunity for a pub- lic hearing, which shall be expedited in such cases, and after such order is final, by the oper- ator 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 813 of this title, section 814 of this title, or sec- tion 817 of this title, all miners employed at the affected mine who would have been withdrawn from, or prevented from entering, such mine or area thereof as a result of such order shall be en- titled to full compensation by the operator at their regular rates of pay, in addition to pay re- ceived for work performed after such order was issued, for the period beginning when such order was issued and ending when such order is com- plied with, vacated, or terminated. The Commis- sion shall have authority to order compensation due under this section upon the filing of a com- plaint by a miner or his representative and after opportunity for hearing subject to section 554 of title 5. (Pub. L. 91–173, title I, § 111, Dec. 30, 1969, 83 Stat. 759; Pub. L. 95–164, title II, § 201, Nov. 9, 1977, 91 Stat. 1312.) Editorial Notes AMENDMENTS 1977—Pub. L. 95–164 substituted provisions relating to the entitlement of miners to their full compensation when they are idled as the result of the operation of this chapter for provisions relating to the maintenance of records, which provisions, as revised, were trans- ferred to section 813 of this title. 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. § 822. Representation of Secretary in civil litiga- tion by Solicitor of Labor Except as provided in section 518(a) of title 28, relating to litigation before the Supreme Court, the Solicitor of Labor may appear for and rep- resent the Secretary in any civil litigation brought under this chapter but all such litiga- tion shall be subject to the direction and control of the Attorney General. (Pub. L. 91–173, title I, § 112, as added Pub. L. 95–164, title II, § 201, Nov. 9, 1977, 91 Stat. 1313.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, 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 chap- ter. For complete classification of this Act to the Code, see Short Title note set out under section 801 of this title and Tables. PRIOR PROVISIONS Provisions similar to this section were contained in section 816(f) of this title prior to the amendment of this subchapter by Pub. L. 95–164. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 120 days after Nov. 9, 1977, see sec- tion 307 of Pub. L. 95–164, set out as an Effective Date of 1977 Amendment note under section 801 of this title. § 823. Federal Mine Safety and Health Review Commission (a) Establishment; membership; chairman The Federal Mine Safety and Health Review Commission is hereby established. The Commis- sion shall consist of five members, appointed by the President by and with the advice and con- sent of the Senate, from among persons who by reason of training, education, or experience are qualified to carry out the functions of the Com- mission under this chapter. The President shall designate one of the members of the Commission to serve as Chairman. (b) Terms; personnel; administrative law judges (1) The terms of the members of the Commis- sion shall be six years, except that— Page 149 TITLE 30—MINERAL LANDS AND MINING § 823 (A) members of the Commission first taking office after November 9, 1977, shall serve, as designated by the President at the time of ap- pointment, 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, resigna- tion, or removal of any member prior to the expiration of the term for which he was ap- pointed 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 be- half of the Commission for the administrative operations of the Commission. The Commission shall appoint such employees as it deems nec- essary to assist in the performance of the Com- mission’s functions and to fix their compensa- tion in accordance with the provisions of chap- ter 51 and subchapter III of chapter 53 of title 5, 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 Ar- lington, Virginia, facility of the Office of Hear- ings 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. Notwith- standing the provisions of section 559 of title 5, the incumbent Chief Administrative Law Judge of the Office of Hearings and Appeals of the De- partment of the Interior assigned to the Arling- ton, Virginia facility shall have the option, on the effective date of the Federal Mine Safety and Health Amendments Act of 1977, of transfer- ring to the Commission as an administrative law judge, in the same grade and position as the other administrative law judges. The adminis- trative law judges (except those presiding over Indian Probate Matters) assigned to the Western facilities of the Office of Hearings 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, Virginia adminis- trative law judges in accordance with proce- dures established by the Director of the Office of Personnel Management. The Commission shall appoint such additional administrative law judges as it deems necessary to carry out the functions of the Commission. Assignment, re- moval, and compensation of administrative law judges shall be in accordance with sections 3105, 3344, 5362 and 7521 of title 5. (c) Delegation of powers 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) Proceedings before administrative law judge; administrative review (1) An administrative law judge appointed by the Commission to hear matters under this chapter shall hear, and make a determination upon, any proceeding instituted before the Com- mission and any motion in connection there- with, 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 dis- position of the proceedings. The decision of the administrative law judge of the Commission shall become the final decision of the Commis- sion 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 administra- tive law judge shall not be assigned to prepare a recommended decision under this chapter. (2) The Commission shall prescribe rules of procedure for its review of the decisions of ad- ministrative law judges in cases under this chapter which shall meet the following stand- ards for review: (A)(i) Any person adversely affected or ag- grieved by a decision of an administrative law judge, may file and serve a petition for discre- tionary review by the Commission of such deci- sion within 30 days after the issuance of such de- cision. 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 erro- neous. (III) 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 deci- sion may be contrary to law or Commission pol- icy, or that a novel question of policy has been presented. The Commission shall state in such order the specific issue of law, Commission pol- icy, 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 in such review pro- ceedings except in compliance with the require- ments of this paragraph. Page 150 TITLE 30—MINERAL LANDS AND MINING § 823a (C) For the purpose of review by the Commis- sion under paragraph (A) or (B) of this sub- section, 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 conclu- sions; (iii) the decision of the administrative law judge; (iv) the petition or petitions for discre- tionary review, responses thereto, and the Com- mission’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 administra- tive 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 Commis- sion determines that further evidence is nec- essary on an issue of fact it shall remand the case for further proceedings before the adminis- trative law judge. (The provisions of section 557(b) of title 5 with regard to the review authority of the Commis- sion are expressly superseded to the extent that they are inconsistent with the provisions of sub- paragraphs (A), (B), and (C) of this paragraph.) (e) Witnesses and evidence; subpoenas; contempt In connection with hearings before the Com- mission or its administrative law judges under this chapter, the Commission and its adminis- trative 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 be- fore the Commission and its administrative law judges. Witnesses shall be paid the same fees and mileage that are paid witnesses in the courts of the United States and at depositions ordered by such courts. In case of contumacy, failure, or re- fusal of any person 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 ju- risdiction to issue to such person an order re- quiring 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. (Pub. L. 91–173, title I, § 113, as added Pub. L. 95–164, title II, § 201, Nov. 9, 1977, 91 Stat. 1313; 1978 Reorg. Plan No. 2, § 102, eff. Jan. 1, 1979, 43 F.R. 36037, 92 Stat. 3783.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a), (d), and (e), 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 prin- cipally 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. For the effective date of the Federal Mine Safety and Health Amendments Act of 1977, referred to in subsec. (b)(2), see section 307 of Pub. L. 95–164, set out as an Ef- fective Date of 1977 Amendment note under section 801 of this title. PRIOR PROVISIONS Provisions similar to this section were contained in section 729 of this title prior to its repeal by Pub. L. 95–164. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 120 days after Nov. 9, 1977, see sec- tion 307 of Pub. L. 95–164, set out as an Effective Date of 1977 Amendment note under section 801 of this title. Executive Documents TRANSFER OF FUNCTIONS ‘‘Director of the Office of Personnel Management’’ substituted for ‘‘Civil Service Commission’’ in subsec. (b)(2) pursuant to Reorg. Plan No. 2 of 1978, § 102, 43 F.R. 36037, 92 Stat. 3783, set out under section 1101 of Title 5, Government Organization and Employees, which transferred all functions vested by statute in United States Civil Service Commission to Director of Office of Personnel Management (except as otherwise speci- fied), effective Jan. 1, 1979, as provided by section 1–102 of Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, set out under section 1101 of Title 5. § 823a. Principal office in District of Columbia; proceedings held elsewhere The principal office of the Commission shall be in the District of Columbia. Whenever the Commission deems that convenience of the pub- lic 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. (Pub. L. 95–164, title III, § 302(d), Nov. 9, 1977, 91 Stat. 1320.) Editorial Notes CODIFICATION Section was enacted as part of Pub. L. 95–164, known as the Federal Mine Safety and Health Amendments Act of 1977, and not as part of Pub. L. 91–173, Dec. 30, 1969, 83 Stat. 742, known as the Federal Mine Safety and Health Act of 1977 which comprises this chapter. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 120 days after Nov. 9, 1977, see sec- tion 307 of Pub. L. 95–164, set out as an Effective Date of 1977 Amendment note under section 801 of this title. § 824. Authorization of appropriations There are authorized to be appropriated, out of any moneys in the Treasury not otherwise ap- propriated, such sums as may be necessary to carry out the provisions of this subchapter. (Pub. L. 91–173, title I, § 114, as added Pub. L. 95–164, title II, § 201, Nov. 9, 1977, 91 Stat. 1315.)