Attachment 1 Title 30-p4

Attachment 1 - Sec. 811

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[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
January 7, 2003 and February 12, 2003]
[CITE: 30USC811]
TITLE 30--MINERAL LANDS AND MINING
CHAPTER 22--MINE SAFETY AND HEALTH
SUBCHAPTER I--GENERAL
Sec. 811. Mandatory safety and health standards
(a) Development, promulgation, and revision
The Secretary shall by rule in accordance with procedures set forth
in this section and in accordance with section 553 of title 5 (without
regard to any reference in such section to sections 556 and 557 of such
title), develop, promulgate, and revise as may be appropriate, improved
mandatory health or safety standards for the protection of life and
prevention of injuries in coal or other mines.
(1) Whenever the Secretary, upon the basis of information submitted
to him in writing by an interested person, a representative of any
organization of employers or employees, a nationally recognized
standards-producing organization, the Secretary of Health and Human
Services, the National Institute for Occupational Safety and Health, or
a State or political subdivision, or on the basis of information
developed by the Secretary or otherwise available to him, determines
that a rule should be promulgated in order to serve the objectives of
this chapter, the Secretary may request the recommendation of an
advisory committee appointed under section 812(c) of this title. The
Secretary shall provide such an advisory committee with any proposals of
his own or of the Secretary of Health and Human Services, together with
all pertinent factual information developed by the Secretary or the
Secretary of Health and Human Services, or otherwise available,
including the results of research, demonstrations, and experiments. An
advisory committee shall submit to the Secretary its recommendations
regarding the rule to be promulgated within 60 days from the date of its
appointment or within such longer or shorter period as may be prescribed
by the Secretary, but in no event for a period which is longer than 180
days. When the Secretary receives a recommendation, accompanied by
appropriate criteria, from the National Institute for Occupational
Safety and Health that a rule be promulgated, modified, or revoked, the
Secretary must, within 60 days after receipt thereof, refer such
recommendation to an advisory committee pursuant to this paragraph, or
publish such as a proposed rule pursuant to paragraph (2), or publish in
the Federal Register his determination not to do so, and his reasons
therefor. The Secretary shall be required to request the recommendations
of an advisory committee appointed under section 812(c) of this title if
the rule to be promulgated is, in the discretion of the Secretary which
shall be final, new in effect or application and has significant
economic impact.
(2) The Secretary shall publish a proposed rule promulgating,
modifying, or revoking a mandatory health or safety standard in the
Federal Register. If the Secretary determines that a rule should be
proposed and in connection therewith has appointed an advisory committee

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as provided by paragraph (1), the Secretary shall publish a proposed
rule, or the reasons for his determination not to publish such rule,
within 60 days following the submission of the advisory committee's
recommendation or the expiration of the period of time prescribed by the
Secretary in such submission. In either event, the Secretary shall
afford interested persons a period of 30 days after any such publication
to submit written data or comments on the proposed rule. Such comment
period may be extended by the Secretary upon a finding of good cause,
which the Secretary shall publish in the Federal Register. Publication
shall include the text of such rules proposed in their entirety, a
comparative text of the proposed changes in existing rules, and shall
include a comprehensive index to the rules, cross-referenced by subject
matter.
(3) On or before the last day of the period provided for the
submission of written data or comments under paragraph (2), any
interested person may file with the Secretary written objections to the
proposed mandatory health or safety standard, stating the grounds
therefor and requesting a public hearing on such objections. Within 60
days after the last day for filing such objections, the Secretary shall
publish in the Federal Register a notice specifying the mandatory health
or safety standard to which objections have been filed and a hearing
requested, and specifying a time and place for such hearing. Any hearing
under this subsection for the purpose of hearing relevant information
shall commence within 60 days after the date of publication of the
notice of hearing. Hearings required by this subsection shall be
conducted by the Secretary, who may prescribe rules and make rulings
concerning procedures in such hearings to avoid unnecessary cost or
delay. Subject to the need to avoid undue delay, the Secretary shall
provide for procedures that will afford interested parties the right to
participate in the hearing, including the right to present oral
statements and to offer written comments and data. The Secretary may
require by subpoena the attendance of witnesses and the production of
evidence in connection with any proceeding initiated under this section.
If a person refuses to obey a subpoena under this subsection, a United
States district court within the jurisdiction of which a proceeding
under this subsection is conducted may, upon petition by the Secretary,
issue an order requiring compliance with such subpoena. A transcript
shall be taken of any such hearing and shall be available to the public.
(4)(A) Within 90 days after certification of the record of the
hearing held pursuant to paragraph (3), the Secretary shall by rule
promulgate, modify, or revoke such mandatory health or safety standards,
and publish his reasons therefor.
(B) In the case of a proposed mandatory health or safety standard to
which objections requesting a public hearing have not been filed, the
Secretary, within 90 days after the period for filing such objections
has expired, shall by rule promulgate, modify, or revoke such mandatory
standards, and publish his reasons therefor.
(C) In the event the Secretary determines that a proposed mandatory
health or safety standard should not be promulgated he shall, within the
times specified in subparagraphs (A) and (B) publish his reasons for his
determination.
(5) Any mandatory health or safety standard promulgated as a final
rule under this section shall be effective upon publication in the
Federal Register unless the Secretary specifies a later date.
(6)(A) The Secretary, in promulgating mandatory standards dealing
with toxic materials or harmful physical agents under this subsection,
shall set standards which most adequately assure on the basis of the
best available evidence that no miner will suffer material impairment of
health or functional capacity even if such miner has regular exposure to
the hazards dealt with by such standard for the period of his working

Attachment 1 - Sec. 811

life. Development of mandatory standards under this subsection shall be
based upon research, demonstrations, experiments, and such other
information as may be appropriate. In addition to the attainment of the
highest degree of health and safety protection for the miner, other
considerations shall be the latest available scientific data in the
field, the feasibility of the standards, and experience gained under
this and other health and safety laws. Whenever practicable, the
mandatory health or safety standard promulgated shall be expressed in
terms of objective criteria and of the performance desired.
(B) The Secretary of Health and Human Services, as soon as possible
after November 9, 1977, but in no event later than 18 months after such
date and on a continuing basis thereafter, shall, for each toxic
material or harmful physical agent which is used or found in a mine,
determine whether such material or agent is potentially toxic at the
concentrations in which it is used or found in a mine. The Secretary of
Health and Human Services shall submit such determinations with respect
to such toxic substances or harmful physical agents to the Secretary.
Thereafter, the Secretary of Health and Human Services shall submit to
the Secretary all pertinent criteria regarding any such substances
determined to be toxic or any such harmful agents as such criteria are
developed. Within 60 days after receiving any criteria in accordance
with the preceding sentence relating to a toxic material or harmful
physical agent which is not adequately covered by a mandatory health or
safety standard promulgated under this section, the Secretary shall
either appoint an advisory committee to make recommendations with
respect to a mandatory health or safety standard covering such material
or agent in accordance with paragraph (1), or publish a proposed rule
promulgating such a mandatory health or safety standard in accordance
with paragraph (2), or shall publish his determination not to do so.
(7) Any mandatory health or safety standard promulgated under this
subsection shall prescribe the use of labels or other appropriate forms
of warning as are necessary to insure that miners are apprised of all
hazards to which they are exposed, relevant symptoms and appropriate
emergency treatment, and proper conditions and precautions of safe use
or exposure. Where appropriate, such mandatory standard shall also
prescribe suitable protective equipment and control or technological
procedures to be used in connection with such hazards and shall provide
for monitoring or measuring miner exposure at such locations and
intervals, and in such manner so as to assure the maximum protection of
miners. In addition, where appropriate, any such mandatory standard
shall prescribe the type and frequency of medical examinations or other
tests which shall be made available, by the operator at his cost, to
miners exposed to such hazards in order to most effectively determine
whether the health of such miners is adversely affected by such
exposure. Where appropriate, the mandatory standard shall provide that
where a determination is made that a miner may suffer material
impairment of health or functional capacity by reason of exposure to the
hazard covered by such mandatory standard, that miner shall be removed
from such exposure and reassigned. Any miner transferred as a result of
such exposure shall continue to receive compensation for such work at no
less than the regular rate of pay for miners in the classification such
miner held immediately prior to his transfer. In the event of the
transfer of a miner pursuant to the preceding sentence, increases in
wages of the transferred miner shall be based upon the new work
classification. In the event such medical examinations are in the nature
of research, as determined by the Secretary of Health and Human
Services, such examinations may be furnished at the expense of the
Secretary of Health and Human Services. The results of examinations or
tests made pursuant to the preceding sentence shall be furnished only to
the Secretary or the Secretary of Health and Human Services, and, at the

Attachment 1 - Sec. 811

request of the miner, to his designated physician.
(8) The Secretary shall, to the extent practicable, promulgate
separate mandatory health or safety standards applicable to mine
construction activity on the surface.
(9) No mandatory health or safety standard promulgated under this
subchapter shall reduce the protection afforded miners by an existing
mandatory health or safety standard.
(b) Emergency temporary mandatory standards
(1) The Secretary shall provide, without regard to the requirements
of chapter 5 of title 5 for an emergency temporary mandatory health or
safety standard to take immediate effect upon publication in the Federal
Register if he determines (A) that miners are exposed to grave danger
from exposure to substances or agents determined to be toxic or
physically harmful, or to other hazards, and (B) that such emergency
standard is necessary to protect miners from such danger.
(2) A temporary mandatory health or safety standard shall be
effective until superseded by a mandatory standard promulgated in
accordance with the procedures prescribed in paragraph (3) of this
subsection.
(3) Upon publication of such standard in the Federal Register, the
Secretary shall commence a proceeding in accordance with subsection (a)
of this section, and the standards as published shall also serve as a
proposed rule for the proceeding. The Secretary shall promulgate a
mandatory health or safety standard under this paragraph no later than
nine months after publication of the emergency temporary standard as
provided in paragraph (2).
(c) Modification of standards
Upon petition by the operator or the representative of miners, the
Secretary may modify the application of any mandatory safety standard to
a coal or other mine if the Secretary determines that an alternative
method of achieving the result of such standard exists which will at all
times guarantee no less than the same measure of protection afforded the
miners of such mine by such standard, or that the application of such
standard to such mine will result in a diminution of safety to the
miners in such mine. Upon receipt of such petition the Secretary shall
publish notice thereof and give notice to the operator or the
representative of miners in the affected mine, as appropriate, and shall
cause such investigation to be made as he deems appropriate. Such
investigation shall provide an opportunity for a public hearing at the
request of such operator or representative or other interested party, to
enable the operator or the representative of miners in such mine or
other interested party to present information relating to the
modification of such standard. Before granting any exception to a
mandatory safety standard, the findings of the Secretary or his
authorized representative shall be made public and shall be available to
the representative of the miners at the affected mine. The Secretary
shall issue a decision incorporating his findings of fact therein, and
send a copy thereof to the operator or the representative of the miners,
as appropriate. Any such hearing shall be of record and shall be subject
to section 554 of title 5.
(d) Judicial review
Any person who may be adversely affected by a mandatory health or
safety standard promulgated under this section may, at any time prior to
the sixtieth day after such standard is promulgated, file a petition

Attachment 1 - Sec. 811

challenging the validity of such mandatory standard with the United
States Court of Appeals for the District of Columbia Circuit or the
circuit wherein such person resides or has his principal place of
business, for a judicial review of such standard. A copy of the petition
shall be forthwith transmitted by the clerk of the court to the
Secretary. The filing of such petition shall not, unless otherwise
ordered by the court, operate as a stay of the standard. No objection
that has not been urged before the Secretary shall be considered by the
court, unless the failure or neglect to urge such objection shall be
excused for good cause shown. The validity of any mandatory health or
safety standard shall not be subject to challenge on the grounds that
any of the time limitations in this section have been exceeded. The
procedures of this subsection shall be the exclusive means of
challenging the validity of a mandatory health or safety standard.
(e) Distribution of copies of proposed standards or regulations
The Secretary shall send a copy of every proposed mandatory health
or safety standard or regulation at the time of publication in the
Federal Register to the operator of each coal or other mine and the
representative of the miners at such mine and such copy shall be
immediately posted on the bulletin board of the mine by the operator or
his agent, but failure to receive such notice shall not relieve anyone
of the obligation to comply with such standard or regulation.
(Pub. L. 91-173, title I, Sec. 101, Dec. 30, 1969, 83 Stat. 745; Pub. L.
95-164, title II, Sec. 201, Nov. 9, 1977, 91 Stat. 1291; Pub. L. 96-88,
title V, Sec. 509(b), Oct. 17, 1979, 93 Stat. 695.)
Amendments
1977--Subsec. (a). Pub. L. 95-164 substituted provisions revising
and setting out in detail the procedures to be followed by the Secretary
of Labor in developing, promulgating, and revising mandatory health and
safety standards covering coal and other mines for provisions which had
charged the Secretary of the Interior with the responsibility of
developing standards for the protection of life and the prevention of
injuries in coal mines.
Subsec. (b). Pub. L. 95-164 substituted provisions relating to
emergency temporary mandatory standards for provisions requiring that
improved standards not reduce the previously existing level of health
and safety in coal mines.
Subsec. (c). Pub. L. 95-164 substituted provisions relating to the
modification of standards for provisions covering the consultative and
research steps in the promulgation of safety standards.
Subsec. (d). Pub. L. 95-164 substituted provisions relating to
judicial review of standards for provisions covering the consultative
and research steps in the promulgation of health standards.
Subsec. (e). Pub. L. 95-164 redesignated subsec. (k) as (e) and
substituted ``proposed mandatory health or safety standard or
regulation'' for ``proposed standard or regulation'' and ``coal or other
mine'' for ``coal mine''.
Subsecs. (f) to (j). Pub. L. 95-164 struck out subsecs. (f) to (j)
which had related to the submission of objections to proposed standards,
hearings, the effective date of standards, mandatory standards for
surface coal mines, and the publication of pre-existing consistent
regulations in the Federal Register and the continuing effectiveness of
those regulations until modified or superseded, and incorporated those
provisions, as altered to apply to coal and other mines and as otherwise

Attachment 1 - Sec. 811

revised, into subsec. (a).
Subsec. (k). Pub. L. 95-164 redesignated subsec. (k) as (e).
Change of Name
``Secretary of Health and Human Services'' substituted for
``Secretary of Health, Education, and Welfare'' in subsec. (a)(1),
(6)(B), and (7) pursuant to section 509(b) of Pub. L. 96-88 which is
classified to section 3508(b) of Title 20, Education.
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
Subchapter 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.
Section Referred to in Other Sections
This section is referred to in sections 813, 815, 841, 842, 846, 861
of this title.